CoH moves to block assent of quango Bill
The Corporation of Hamilton asked for a legal order yesterday to stop the Governor approving legislation designed to turn the city authority into an unelected quango.
Mark Diel, the lawyer for the Corporation of Hamilton, said the unusual step was needed because any legal action against the legislation would be halted if a minister-appointed board takes over.
He said: “The entire purpose of this approach is if this receives the Governor's assent, we won't be able to make this application or any application at all.”
Mr Diel also said a ruling would allow officials to start the formal process for elections, which would be needed in the event that the Municipalities Reform Act 2019 was successfully challenged in court.
The case came before Chief Justice Narinder Hargun hours after the Senate halted its debate on the Act and just over a week after it was approved by the House of Assembly.
Senators will resume their deliberations at a later sitting, possibly today.
Mr Diel said the application yesterday was to restrain the Governor from giving Royal Assent to the Act if it is passed in the Upper House.
This would be in effect until either a ruling on the legal challenge or a further court order was made.
He added: “In the event, of course, that the Senate reject the Bill, then it goes back to the House of Assembly and cannot return to the Senate for approximately another year.”
Mr Diel told the court that municipal elections were normally around May 9, but that the first step in the process was the issuing of a writ, which the parliamentary registrar said must happen around March 25.
He explained that even if the Act progressed, but the court later ruled in favour of the corporation, the city would still find itself without any elected officials on May 13, when the sitting councillors' term is due to end.
Mr Diel claimed there was “some confusion” about the purpose of the original summons from the corporation, which he said related to a series of Acts that restricted the corporation in how it carried out its business.
He gave the example of clauses which required the Minister's approval for the corporation to take certain actions, which he said was intended to “stymie” the municipality.
Mr Diel added: “This application, for the avoidance of any doubt, in no way and nor is it intended to, affect any voting rights of any sort whatsoever. This application is, in part, intended to preserve voting rights, not restrict or extinguish them.”
Chief Justice Narinder Hargun said that “ordinarily” the court would not intervene until after an Act is passed.
Greg Howard, for the Attorney-General's Chambers, argued the corporation did not have a viable case.
He said part of the Governor's responsibilities was that he had to satisfy himself that legislation was not “repugnant” to the constitution before it is approved.
Mr Howard added: “If in exercising his discretion, the Governor takes a period of time that is longer than the legislature would like, then the legislature will have to deal with it. That in no way requires the court to interfere with that decision.”
He also questioned that the court needed to step in “urgently” and explained that a case similar to the corporation's bid to fight the new legislation, as well as other amendments dating back to 2010, had been in the courts since 2014.
The lawyer said that case was adjourned until a new group of councillors was elected to the corporation, which was due to be weeks later, who could then “take up the mantle of the constitutional challenge”.
He added: “The point I make is that they haven't done it.”
Mr Howard further challenged the corporation's claim that they were in a fight for local democracy.
He told the court that until 2010, only property owners had the right to vote in the municipality and the corporation was seeking a declaration from the courts that the 2010 Act that extended the franchise was unlawful.
Mr Diel said that voters' rights had nothing to do with the matter before the courts.
He said: “We are not raising or seeking to set back the clock in terms of voter rights.”
Mr Justice Hargun reserved his decision until a later date.
Charles Gosling, the Mayor of Hamilton, said yesterday: “It has never, ever been our intent to have any reduction of the franchise; if anything we are looking to increase the franchise.”
He said he wanted to see residential ratepayers who were not on the parliamentary register for the corporation, such as homeowners who leased out their properties, to be able to vote in municipal elections.
Mr Gosling said that applied in particular to people in the North Hamilton area.
He added: “I think they need to have a voice in how their neighbourhood is being developed and the best voice you have is through the ballot box.”