Mark Shaw, QC, who is representing the CIG in the judicial review brought by Shirley Roulstone, a member of the Cruise Port Referendum campaign, said the Constitution does not compel the government to pass a general law for referendums before passing a specific bill to provide for a specific vote.

Despite all of the issues and inequities that the missing framework law has created for this particular referendum, as argued by Roulstone’s legal team, Shaw said that in order to persuade the judge that they were right, they had to demonstrate that section 70 compelled government to pass the framework legislation.

Roulstone is challenging the cruise vote law as being unconstitutional, largely because the question is flawed and that it is done without a framework law that would provide some impartial guidelines. But Shaw said the words in the Constitution “do not support their ambition”.

Shaw argued the same point in a multitude of ways for the best part of the second dayof the hearing. He said that having a general law would not necessarily solve all of the issues created by its absence, and in any event it simply was not a constitutional requirement in order to make the existing port law legal.

He pressed home the point that the government was perfectly entitled, within the boundaries of the Constitution, to pass specific laws for every single referendum if it chose, as he noted they were very rare things.

He conceded that government is drafting the framework law because there was room for such a piece of legislation, but made it clear that if the government wins this case, then it will not enact this law before it calls a new vote.

Accusing Chris Butler, the lawyer leading Roulstone’s legal team for the hearing, of “pleading for an ideal standard”, Shaw implied that the less than perfect law was still lawful and constitutional.

However, Justice Tim Owen noted that from the very beginning, government had made major errors in the drafting of the referendum law for the port, even setting the date and question before passing any legislation, and was then forced to re-do the law and rewrite the question. Pressing Shaw to defend his client’s position, he said the “government had hardly covered itself in glory” as it paved the way for the vote.

Responding to the judge’s queries, Shaw referred to the problems in the early stages as a “false start”, but did not accept that they had done anything wrong, in contrast to the judge’s position.

But Shaw urged Justice Owen not to strike down the port law “because it does not meet some ideal standard”, as he hammered home the government’s position that none of Butler’s arguments about the missing general law, leading to a very bad specific law, mattered because what the government did was not unconstitutional.

Addressing only some of the major problems that the state of the current referendum law has created, Shaw argued that many of them were policy matters. He contended that these things could not be managed through legislation, in any event, and saw nothing wrong with the massive inequities regarding campaign finance, the government using the people’s money to argue against a people’s vote and their unfair access to state-owned media advertising.

The QC also implied that the lack of any provision for voter registration was not important and was merely tough luck. There is always a certain level of disenfranchisement at any election, Shaw pointed out, because of the need for a cut-off point. He urged the judge not to tread on the toes of parliament and show deference to the democratically elected legislators.

Shaw persisted with the position that all of the alleged problems created by the missing framework law could be dealt with through a combination of common sense, administration and policy direction. He gave no real response to Butler’s position that, as a key player in the game, it was absurd to suggest government should also be allowed to set all of the rules if a vote was to be free, fair and effective.

In his response to the government’s submission, Butler pointed out that without a framework law, the very beginning of the process provided for in section 70 of the Constitution is troublesome because there needs to be legislation or regulations in place setting the parameters of how signatures are collected and verified. Doing that by passing a new law for each referendum or through policy and administration was impossible, he said, not least because government would not know that a people’s petition was underway before the fact.

He challenged much of what Shaw said and underscored, once again, that the existing port law was exceptionally flawed and did not provide for a fair or efficient vote. That, Butler added, was largely because there was no overarching guiding legislation to create the necessary level playing field to make government act in the people’s interests rather than its own.

“A general law would support section 70 of the Constitution but the current law does not,” Butler stated.

As the arguments wrapped up, Justice Owen said he would require some time and that he hoped to deliver his ruling during the week of 10 February.

However, it became apparent throughout the case that, regardless of Owen’s ruling, the matter would not be settled. The judge and both parties appeared to expect that whichever side lost this judicial review would appeal the decision.

During his submissions to the judge on Wednesday, Tom Lowe QC revealed that as well as supporting this judicial review, the National Trust was pressing ahead with a full legal suit based on government’s proposed deliberate destruction of the reefs and wrecks in George Town Harbour to make way for the controversial piers.

And given that not all of the concerns that CPR have about how government handled this people’s referendum, the door appears open to further legal challenges from that campaign as well. However, at this stage no other suit has been filed in the Grand Court.