Monday 17 December 2018

The Western Australian Secession Referendum - A Precedent for Dealing with Troublesome Referendums?

A Crocodile in Lake Argyle, Western Australia

















Jane Lambert

On 30 Dec 1932 the Parliament of Western Australia passed the Secession Referendum Act 1932 (23 Geo V No XLVII).  S.5 (1) of the Act required the Governor of Western Australia to issue a writ for a vote by ballot on the following question:
"Are you in favour of the State of Western Australia withdrawing from the Federal Commonwealth established under the Commonwealth of Australia Constitution Act (Imperial)?"
The Governor carried out his duty and a referendum was held on 8 April 1933.

Voting in that referendum was compulsory.  S.5 (2) declared:
"It shall be the duty of every elector to record his vote at the taking of the said ballot."
Failure to do so was an offence under s.5 (3) and anybody convicted of such offence was liable to a £2 fine under s.5 (4).  Consequently, 91% of the electorate turned out to vote.  Of the 209,359 who voted, 138,653 favoured secession and 70,706 voted against.  Following this plebiscite, the state legislature passed The Secession Act 1934 (25 Geo V No 1) which appointed a delegation to present the case for secession to the United Kingdom Parliament.

The reason why the delegation needed to petition the British Parliament is that the Australian constitution was a British statue that provided for an indissoluble union of the Australian states.  The Parliament of the United Kingdom was the only legislature that could amend the Australian constitution and thus grant independence to a state that wished to secede from the Australian federation.

Upon receiving the petition, Parliament appointed a select committee to consider it.  The committee consisted of 3 peers (including Lord Wright the law lord) and 3 MPs.  They met on 27 March 1935 to hear argument from the state delegation and the Australian federal government.  The state relied on the overwhelming majority in favour of secession arguing that Parliament had a duty to accede to the voters' demand.  The federal government relied on s.4 of the Statute of Westminster 1931 which provided:
"No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof."
Both sides relied on the doctrine of Parliamentary sovereignty as expounded by Dicey whereby Parliament reserves "the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislature of Parliament."  The secessionists argued that it enabled Parliament to override the Statute of Westminister and the federalists that it transcended any mandate founded on the results of a plebiscite.

In a brief report, the select committee rejected the secessionist case.  It concluded that although Parliament retained the right in law to legislate on any matter in any part of the King's dominions it was bound by convention not to interfere in the affairs of a country that had achieved independence without the consent of the legislature of that country.  As the consent of the Australian federal legislature was not forthcoming, the United Kingdom Parliament could not give effect to the results of the plebiscite.

As might be expected, the decision of the select committee was met with great disappointment in Western Australia.   As in the debate over the desirability of a second referendum on Brexit, there were complaints of an affront to democracy and threats of civil unrest but nothing came of them.  The Labor Party that had campaigned against secession was returned to office. The social and economic conditions that had fuelled calls for recession improved.

In the debate over whether Parliament should respect the results of the 1933 referendum, exactly the same arguments were made then as are being made now.   The idea that Parliament somehow has a duty to effect the will of the people as expressed in a referendum was rejected in terms and rightly so,  A referendum is, after all, nothing more than a creature of statute.  As no parliament may bind its successor it should be possible for Parliament to repeal a statute that provides for a referendum as easily as it can repeal any other legislation.  I can think of nothing that has happened since 1935 to have ousted or limited the doctrine of parliamentary sovereignty.

Anyone wishing to discuss this article should call 020 7404 5252 during office hours or send me a message through my contact form.

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