1999 Christchurch City Council referendum policy

I came across this document just recently. In the past the Council has considered referendums but finally rejected them. Is it time for a change Christchurch?

(not formatted well so click on the title link above)
CITIZENS INITIATED REFERENDA RR 11201
Officer responsible Author
Legal Services Manager Peter Mitchell

Corporate Plan Output: Public Accountability

INTRODUCTION

The purpose of this report is to address the following resolution passed by the Council at its meeting on 28 October 1999:

“That the Council resolve to seek a report from its officers on the feasibility of the
Christchurch City Council implementing a system whereby local residents could require
the Council to hold a referendum on a particular issue, such report to cover the issues
set out in the Citizens Initiated Referenda Act 1993, the financial implications of such
referenda and the basis on which decisions would be made as to which questions would
be put to a Citizens’ Referendum.”
REFERENDA GENERALLY
Referenda have been used in New Zealand for more than a century as a means of
making a decision on issues of public policy. The most common subject matter of
referenda has been the liquor licensing issues over the course of the twentieth century
and since the enactment of the Citizens Referenda Act 1993 there have been various
matters put to the public.
With regard to local authorities, section 121 of the Local Elections and Polls Act 1976
provides:
121. HOLDING OF REFERENDUM WITH ELECTION--
(1) A local authority may direct the Returning Officer to conduct a referendum
on any matter relating to--
(a) The services that are provided or that may be provided by the local
authority; or
(b) Any policy or intended policy of the local authority.
(2) More than one referendum may be conducted at the same time.
(3) The result of any such referendum shall not be binding on the local
authority.
(4) The local authority shall determine whether the matter that is the subject of
the referendum affects all or part of its district or region and shall direct
the Returning Officer to conduct the referendum over all or some of the
electors of the district or region accordingly.
(5) A referendum may be conducted in conjunction with any election or poll or
separately.
(6) A referendum conducted pursuant to this section shall be deemed to be a
poll.
Apart from this reference there are no other statutory provisions as to the conduct of a
referendum by a local authority.
I understand the thought behind the Council’s resolution of 28 October 1999 is for a
system whereby citizens of Christchurch could “demand” that the Council hold a
referendum on a particular topic, whether or not the Council wished to hold a
referendum. Further I understand that it would be the intention that, as with national
referenda, any outcome of a particular referendum would not be binding on the Council.
It is on this basis that I have approached this report.
It is my intention to consider the feasibility of a citizen demanded system of the Council
holding referenda. It is not my intention to discuss the value of such a system and
whether or not referenda would enhance the democratic process in Christchurch. Those
issues are properly for elected members to decide.
I will consider in summary form the provisions of the Citizens Initiated Referenda Act
1993 and then the application of that system at a city level.
CITIZENS INITIATED REFERENDA ACT 1993
The 1993 Act provides that a petition seeking the holding of an indicative referendum
can be presented to the House of Representatives. Such a petition can be by one or
more persons and it is intended to specify the question that is proposed be put to the
voters. Each petition can only relate to one question.
A person proposing an indicative referendum petition must submit the proposed
question, accompanied by a draft of the proposed petition, to the Clerk of the House of
Representatives.
The Clerk is then required to advertise the proposal, including the wording of the
questions, and call for comments. Following consideration of submissions received and
consultation of the comments the Clerk must decide the wording of the “precise”
question to be put to voters in the indicative referendum. The question must ensure that
only one of two answers may be given to it.
On being notified by the Clerk of his approval the promoter of the petition then
proceeds to promote it and collect the required number of signatures on approved forms.
The petition must be signed by not less than 10% of eligible electors in New Zealand.
All expenses relating to the printing of the petition and its promotion are to be met by
the promoter.
The promoter must deliver the petition to the Clerk within 12 months after publication
of a notice advising of the Clerk’s approval of the proposal and the Clerk must then
certify that the petition has been signed by the required number of eligible electors. If
there are insufficient electors the promoter may collect more signatures within a two
month period and resubmit the petition.
Upon receipt of a certified petition the Governor General must, within a month, appoint
the day on which the referendum is to be held. Such date must be within 12 months
after presentation of the certified petition to the House of Representatives.
There are provisions for the House to defer holding the referendum so that it can be held
in conjunction with a general election and the 1993 Act also contains the mechanics for
the holding of the referendum, the publicity that may be given to it, limits on
expenditure promoting the referendum and the duties on returning officers. All
expenses incidental to the holding of the referendum, except for the expenses of the
promoter in relation to the proposal and collecting of signatures, is to be met out of
public money. Nothing in the 1993 Act requires Parliament to act on the outcome of
any referendum.
The 1993 Act provides no specific guidance as to the scope or nature of the permitted
subject matter of a referendum and there is no limit on the subject matter to matters
which are competent or appropriate for the New Zealand Government to action. It
would appear that the only barrier in this regard are the expenses of promoting the
petition on the promoter which would regulate frivolous proposals.
The only express provision in the Act regarding subject matter is that the Act states that
a petition cannot deal with:
(a) the subject of an election petition under the Electoral Act 1993 in relation to
Parliamentary elections; or
(b) a petition relating to the conduct of an indicative referendum itself.
CITY COUNCIL SYSTEM
It would be technically feasible to have a similar system at a local authority level.
Such a system could be based upon a petition being made by one or more persons to the
Council, that a person appointed by the Council (and I will refer to this matter below)
would settle the question so that it is capable of only one answer, and that upon receipt
of a petition signed by X% of eligible electors in Christchurch City then the Council
would hold a referendum at a time it specified or in conjunction with the triennial local
government elections. As with the national referenda, the result of any referendum at a
local level would not be binding on the Council.
Regarding the number of persons required to trigger a petition, the system would have
to be persons who are registered on the electoral roll and eligible to vote in City Council
elections and polls. Presently there is a total of 223,552 persons, being residential
electors and ratepayer electors.
The 1993 Act has 10% as the number required to demand a referendum. In the
Christchurch context that would be 22,385 persons across the City. Alternatively a
higher or lower percentage could be required.
The approximate cost to hold a stand alone referendum is $300,000 and this arises
principally through the cost of mailing the voting paper to all eligible electors in
Christchurch. If a referendum was held in conjunction with the local body elections the
cost of the referendum would be approximately $50,000.
A key role in any citizens initiated referendum system at the local level would be the
person who determines the wording of the precise questions to be put to the voters in a
referendum. As noted above the 1993 Act requires that the question must be such as to
convey clearly the purpose and effect of a referendum and such as to ensure that only
one of two answers may be given to the question. There is no equivalent in any local
authority context to a position such as the Clerk of the House of Representatives.
While the Clerk is an officer of Parliament he is seen as being independent of the
Government of the day in terms of making a decision on the question to be put to the
voters.
The closest analogy in a local context would be the position of the Returning Officer.
That would be one option or alternatively some other Council officer who has the
confidence of the Council to act in an independent manner could be appointed to the
task of settling the question to be put to the voters.
I also believe that if there was to be a local system then there would have to be stricter
criteria regarding the subject matter of any referendum. Given that such referenda are
relatively expensive it would be appropriate to ensure that the subject matter was
something upon which the Council was capable of acting if it choose to accept the result
of a referendum. In that regard it could perhaps be appropriate that the person who
decides the form of the question would also be empowered to make a decision on
whether or not the question was one which the Council was able to act upon.
As with a national referendum it would be a matter for the promoter of a local
referendum to meet the expenses of obtaining the signatures of the required percentage
of the voters of Christchurch to the petition for referendum. The checking of those
signatures could be carried out by the Council as is the case at present with other
situations where the Council can be receiving petitions, for example in an amalgamation
request.
I would envisage that the mechanics of the conduct of the referendum itself would be
those used for the carrying out of a poll and which are presently set out in the Local
Elections and Polls Act 1976. An issue that would need to be considered further would
be the grounds upon which the result of a referendum could be challenged through the
courts as is presently provided for in other types of polls. In this regard clearly there
could be additional expense for the Council. At the national level there has been one
judicial review of the Clerk’s decision to determine the question to be put to electors
and that is a potential expense which could also occur at the local level.
As with the public service, Council units would have a neutral role in providing
assistance on the formulation of the question which would be the subject of a
referendum. However, it may be that at times a Council response to a proposed
referendum could be considered appropriate. Such a response could involve a
declaration of support for the proposal, an indication of willingness to take account of
public debate over the issue, rejection of the proposal or the provision of information
that might assist the debate.
If the Council was minded to support the proposal then an approach could be made to
the promoter in that regard so as to avoid the need for a referendum to be held.
CONCLUSION
It is feasible for a system for the holding of local referenda to be initiated by the Council
providing the Council is willing to fund the potential expenditure that is involved.
At the present time a local authority is empowered under the Local Elections and Polls
Act to hold referenda on any matter that it chooses to do so. So a voluntary system as
provided for in the 1993 Act could be adopted by the Council with some modifications
and applied to the existing legal provisions. However, those existing provisions are
dependent entirely on the willingness of the Council to fund any referendum proposal
which it receives.
If the Council desired to have a system whereby electors could demand as of right a
referendum provided the required signatures were obtained then in that regard the
Council could promote a local bill which would be drafted in the format of the 1993 Act
at a local level.
The City Manager comments:
The following section deals with the potential purpose and some of the implications of
citizens referenda.
Firstly, the purpose. Most of the commentary and academic analysis of referenda
procedures is written in the context of the use of binding referenda. As noted by
Mr Mitchell, our legislation explicitly states that referenda are not binding, although
statutory change could be introduced. It is argued by some that referenda processes,
particularly binding referenda, are somehow “more democratic”. Others dispute this,
pointing out that there are differing concepts of democracy, namely participatory
democracy and representative democracy. The democratic model on which governance
is based in New Zealand is of the representative mode. As elected members are well
aware, they are held accountable to those on behalf of whom they exercise power and
make decisions through the electoral process. This is not “less democratic” than a
system based on use of plebiscite, it is just different.
There are significant accountability issues which arise when the two systems are mixed.
There is a loss of accountability when a governing body such as a council has key
decisions taken from it and determined by binding referenda. This is why the New
Zealand approach has been for Parliament or councils not to be bound by referenda but
for a referendum to be an input to the decision-making process rather than superseding
the accountability of elected members.
Given this there are two potential purposes for citizens initiated referenda: a mechanism
for raising issues which the Council has not addressed and a mechanism for providing
input as to community attitudes on a specific issue. It is therefore relevant to review the
extent to which our existing processes and mechanisms provide for issues to be raised
with Council and community views to be canvassed.
The following are among the ways in which issues can be raised by Christchurch
citizens for consideration by Council:
- petition to community board or Council
- delegation, seeking speaking rights at a meeting
- submissions on Annual Plan
- approach to an officer in person, (including one of the community or other
advocates) in writing or by telephone
- approach to an elected member
- complaint to the Ombudsman or Audit office on use of legal remedy
The following are all ways in which the views of citizens can be and are canvassed by
Council during decision-making process:
- consultation on the Annual Plan
- consultation on a specific policy draft, programme or project proposal
- consultation with interest groups, residents groups, community boards, etc.
- annual citizens survey and other statistically significant survey methods
- special consultative procedures under the Local Government Act
Given the New Zealand governance framework, the key reasons for seeking increased
use of referenda would be if it led to appropriate issues being raised which are not
otherwise considered by the Council, or provided a significantly better quality of input
of community views to decision-making than is available with current methods.
Two other matters should appropriately be raised, firstly, the relatively high cost of
referenda, not simply the polling cost of approximately $300,000 per ballot in
Christchurch, but also the marketing cost of providing information and raising of
awareness for a ballot. Secondly, the technical difficulty of wording sometimes
complex issues in a closed way so as to secure a ‘Yes’ or ‘No’ response.
Recommendation: That the City Council and Community Boards continue to develop
practice for effective community consultation but not in the area of
city-wide referenda.
Chairman’s
Recommendation: That the above recommendation be adopted.