Tuesday, November 17, 2009

An unlawful veto

The Legislation Advisory Committee - one of the government's key advisors on legislation - has advised the Clerk of the House to veto Larry Baldock's proposed referendum question on whether referenda should be binding, on the grounds that it would "contradict the fundamental purpose of the Citizens Initiated Referenda Act 1993".

Sir Geoffrey [Palmer] has told Clerk of the House Mary Harris, who must approve or reject final wording for the vote, that the wording is so defective that "the committee does not think that these defects are capable of being remedied".

"The proposed referendum questions [sic] appear to contradict the fundamental purpose of the Act," he said in a letter dated October 23.

"It is doubtful that Parliament contemplated that such a referendum could be held under the authority of the Act."

The problem? The Clerk can't actually do that. According to the Act, the Clerk "shall determine the wording of the precise question to be put to voters in the proposed indicative referendum" to ensure that it "convey[s] clearly the purpose and effect" of the question and has only two possible answers, and they must take into account the proposed question, any comments, and any consultation. But they have no actual power to refuse a question, unless it has been the subject of a referendum within the last five years, or relates to an electoral petition.

But in addition to advocating an unlawful (and simply improper) course of action, Palmer comes across as more than a little sniffy about the people having a say in the making of our own laws:

"The second question that arises is what does binding mean?" he asked.

"Does it mean that the content of the referendum is capable of displacing or amending an Act of Parliament directly?

"As a matter of legal drafting, that cannot be the case. It seems quite impossible for a citizen's initiated referendum to contain professionally drafted amendments that would be legally effective."

Because clearly, us dirty peasants can't draft amendments to law, or hire lawyers to do it for us. That knighthood really seems to be going to Palmer's head...

As for what should be done, given the ambiguities in the question the Clerk should obviously go back to Baldock and get him to nail down exactly what it is that he wants. But if that fails - and I expect it to - then I think we should let the question stand. The law calls them indicative referenda for a reason, and while under the present wording a "yes" vote would not support any specific framework, it would indicate support for a broad path of constitutional change. And whether we want to go down that path or not is something we deserve to have a say on.