Could the Labour Party end up in court over its party list? Probably not, but this is the Labour Party we're talking about!

In the wake of Andrew Little's shoulder tapping Willie Jackson for a "winnable" position on Labour's list, along with the selection of Paul Eagle and Greg O'Connor as candidates in eminently winnable electorates, Labour is (once again) facing some strife over the role that gender plays in its candidate selection practices.

Vernon Small sets out the issue thus:

It may come as a surprise to some that Labour is still committed to its aim of achieving a a gender-balanced caucus after the next election.

Because in light of recent events ... you might be forgiven for thinking it is being honoured and breached at the same time.

...

[T]here is an acknowledgment [within Labour] now that [gender-balance] simply cannot be achieved at 25 per cent (without sacking a whole lot of male MPs), is near impossible at 30 per cent and could be in view at 35 per cent, though by no means assured even then.

So now, if you ask the party leadership, the stress has gone on to it being do-able at that 35 per cent level – equivalent to about 42 seats.

What makes this a problem for Labour (as opposed to National, who retain their belief that the magical "merit" fairy will one day just start sprinkling its dust over men and women nominees equally) is that Labour has turned equal gender representation into a rule rather than a vague aspiration. In particular, the Labour Party constitution states:

8.47 The Moderating Committee must, in determining the list, ensure that for any percentage of the Party Vote likely to be obtained, and taking into account the electorate MPs likely to be elected with that level of Labour support, the resultant Caucus will comprise at least 50% women.

So - what happens if that Moderating Committee puts together a party list which isn't going to deliver equal representation of men and women in caucus at less than 35% of the Party Vote? Or, as Matthew Hooton twitterered on his twitterer device:

Never one to leave my fans hanging, I think I'd answer the question something like this ... .

First of all, let's note what needs to happen for a court even to look at this matter. Labour would have had to complete its electorate selections and then finalise its list (involving a process of regional rankings required to balance a bunch of factors, followed by the moderating committee trying to stitch the various patches into a final quilt). I don't know when that process will be finished, but in 2014 it was June 23rd - some 5 months before that election. This time around the election is happening a couple of months earlier, so maybe the selection timeframe will also come forwards ... or maybe the announcement will be closer to election day than last time.

Whatever the case, some Labour Party member (and maybe not even being a Labour Party member would be enough ... you may need to be a disappointed candidate to have standing to sue) then would have to bring a judicial review proceeding asserting that the Moderating Committee had failed to abide by clause 8.47 because the announced list (combined with "likely" electorate outcomes) is not able to deliver the mandated gender parity. Pause there for a second - this whole hypothetical depends on some party member(s)/disappointed candidate spending tens-of-thousands of dollars hauling their own party into court in a messy and divisive legal challenge just as the election campaign is hitting its peak.

However, this is the Labour Party we're talking about, so despite the somewhat implausible nature of the hypothetical we shall continue on with it. That hypothetical judicial review might allege two things:

(1) Clause 8.47 requires that the moderating committee produce a list that will see 50% or more women elected at any and all "likely" levels of the Party Vote, but the Committee's list will only create this outcome if Labour gets 35% of the Party Vote.

(2) Clause 8.47 only requires that the moderating committee produce a list that will see 50% or more women elected should some putative "likely" level of the Party Vote be reached, but given current polling the 35% level the committee has assumed is too high (i.e. 35% is not "likely" to occur).

I tentatively think the second reading of the provision is the better one - that the Committee is required to create a list that will achieve gender parity provided some "likely" share of the Party Vote is reached. A requirement that the Committee produce a list that will achieve 50% or more women in caucus at any and all "likely" levels of the Party Vote simply cannot be complied with. Given the various electorate selections (which, remember, occur independently before the list being created), it may well be impossible for the Committee to create a list that produces a gender-equal outcome for all "likely" levels of the Party Vote. For example, in 2014 17 male electorate candidates won seats for Labour, 10 female electorate candidates did so, and Labour was entitled to 5 list seats ... meaning that had clause 8.47 been in effect then it literally could not be met irrespective of how the list is drawn up. So that seems a bad reading of the provision to adopt.

If that is the case, then the claim would turn on whether the Committee really can claim it is "likely" that Labour will get 35% of the Party Vote on election day if its current polling some 5(?) months before that event is steady at 27%. On this, I'll just note two things.

First of all, "likely" has to have some meaning beyond "somewhere in the multiverse this will happen". So the Committee can't just reason backwards and say "at 35% we'd get gender parity, thus we deem 35% a 'likely' result in September". Rather, the Committee would have to show some basis for why 35% is a feasible or realistic outcome to predict given where the party now stands.

However, I think a Court is going to be pretty solicitous toward the party when judging what is "feasible or realistic". Politics and campaigning at elections to get candidates elected is the business of political parties, not courts. It involves forms of judgment and knowledge that judges aren't especially adept at. What is more, meddling with party selection processes is about as political as things get - it brings the courts very much into the business of deciding who the people's elected representatives will be. And note that the Moderating Committee's processes come only at the end of a set of other processes, in which a whole lot of internal party factional trade-offs will have taken place over who gets put ahead of whom on the pecking order.

So I'm guessing that a Court would give the Committee a fair degree of leeway if it can sketch out some sort of half-way plausible path to 35%, and thus gender parity. Because the last thing that courts want to do is become micro-managers of political party candidate selection processes - this just isn't a place they want to be (and, to be honest, it isn't really a place that we want them anyway).

That, anyway, is how I would answer my fans' demand for wisdom and clarity. Go forth, my children, and sin no more.