By CRISPIN HULL A drafting error means that the Yes vote will have to be as high as 60 per cent _ not just a bare 50 per cent majority _ for the referendum question to be passed, according to legal sources.
The drafting error is in the referendum provision of the Federal ACT Self-Government Act and so could not be corrected by the Assembly (even if it was aware of it).
The provision uses the words: “”If a majority of electors approve the entrenching law . . . ”
Most other laws on referendums (including the Constitution) use phrases like “”If a majority of electors voting approve the proposed law . . . ”.
There is a big difference. The former means 50 per cent of the people on the electoral role. The latter means 50 per cent of the people who cast a formal vote.
At the last election, for example, the formal vote was 93.53 per cent. Further, only 90.27 per cent of the total number on the rolls turned up.
About 200,000 people are on the ACT roll. For the referendum to pass it will require 100,000 formal Yes votes. If, however, only 90 per cent of the 200,000 turn out and only 93 per cent of them vote formally, that means the 100,000 Yes votes will have to be got from only 167,400 formal votes _ which is 60 per cent.
The precise percentage will vary according to the number of informal votes and the number who stay away from the polls, but the 90-93 figures are typical.
Last time Hare-Clark won by 70 per cent, but if the Yes vote falls above 50 per cent of the formal vote but below 50 per cent of the number of people on the rolls, there is bound to be legal argument.
Legal interpretation generally says that if the words are different, the meaning is different, so the higher percentage requirement is likely to win, according to legal opinion.