The ACT is following a long Australian history of what should be unnecessary legal rigidity. The latest example comes out of what is likely to be the ACT’s first binding referendum _ on February 18. Opposition electoral spokesman Gary Humphries has at least in-spirit support from the independents for his plan announced this week to entrench the provisions of the Hare-Clark voting system.
Of course, it should not be necessary. The spirit of the referendum held in 1992 should have been enough. However, the Labor Party followed a long Australian tradition of resorting to legislative tricks, semantics and legalisms to defeat the substance of the referendum result.
The Liberals have done the same thing. They defeated the Australia Card on a legal technicality. They refused to abide by the 1974 election result and tipped Whitlam out of power. The Nationals in Queensland loved the gerrymander and so on.
In the ACT the Labor Party tried unsuccessfully to introduce an “”above-the-line” party voting system in order to defeat the spirit of the Hare-Clark system that was approved by 70 per cent of the voters.
The Liberals and Independents are concerned that if Labor gets a majority on February 18 they will have another go. In other words they cannot rely on the Labor Party to do the decent thing.
Humphries wants to prevent this by entrenching certain electoral principles. In doing so he will rely on Section 26 of the Federal ACT Self-Government Act. This provides that you can entrench restrictions in the manner and form of future Legislative Assembly enactments unless they are passed by a referendum or by a special majority (say two-thirds) of the Assembly.
However, there is a drawback to entrenching, especially in the current Australian legislative environment. Australian Parliaments tend to legislate in nauseating detail. It may be because Parliaments feel they cannot rely on courts and the legal system to do the decent thing and implement the intent of the legislation.
So the drawback with entrenching in this environment is that it is more likely you will need to make occasional minor machinery amendments to you very detailed electoral law and some of these might offend the entrenched provisions. To make the minor amendments you then need a whole need referendum.
Now Section 26 of the Self-Government ACT foresaw this difficulty.
It provides for special majorities of the Assembly as an alternative to a full-scale referendum.
Humphries wants his entrenchment to be amendable either by referendum or by a two-thirds majority of the Assembly. The latter would ensure that any machinery changes that had support of the two major parties would get through without fuss.
But there is a snag. (This next bit is hard to explain, and you may have to go over it a couple of times.) Section 26 requires that whatever entrenching mechanism the entrenching law applies must also apply to the entrenching law itself. So if Humphries wants the two-thirds majority to apply to his electoral entrenchment he will need a two-thirds majority of the present House to get it. In other words he will need Labor support. Otherwise, his entrenching law can only use the referendum mechanism, which as we have seen is very clumsy if you want some minor amendments.
It is a natural Catch-22. Humphries needs the Labor Party to do the decent thing in order to draft a workable entrenchment to force Labor to do the decent thing and abide by the spirit of the 1992 referendum result.
My guess is ACT Labor will be true to Australian political form and not do the decent thing.
Of course, the Labor Party is not alone in departing from the spirit of the rules for electoral or political advantage. It appears to be a national trait that does not seem to infect other English-speaking polities as much.
We bowl underarm. We use aluminium bats. We put the letter of the law above its spirit and get ourselves into a whole lot of unnecessary strife. And the electoral chicanery in the ACT over the past three years shows that the fledgling ACT polity is not to depart from previous Australian experience.