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Our mission is to foster the improvement of New Zealand's democratic system and encourage the use of direct democracy through the

Veto, Citizens' Initiated and Recall referendum.

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Wednesday, 22 July 2009

Get cracking on referendum act


DomPost article. The unfolding shambles around the "anti-smacking referendum" invites a full review of the Citizens Initiated Referenda Act.

Even before the voting slips arrive in our letter boxes, we know that, no matter how strong the vote, the politicians are not going to change their minds.

And - arguably - neither should they. The question is poorly framed and manages to be both leading and ambiguous at the same time. This makes the $9 million cost of the exercise troubling - especially when Child, Youth and Family Service centres are being closed and police are cutting the size of their fleet because of budget pressures.

But the problem goes beyond the particular circumstances of this case. This is the fourth referendum to be held under the act. The pattern of the previous three - relating to professional firefighter numbers, whether we should have 99 or 120 MPs, and law and order - is that they typically attract high majorities among those who vote, ranging from 81.46 per cent to 91.75 per cent. Yet none of them has had much real effect upon the political process. The result is increasing cynicism, which is corrosive of rather than encouraging of democratic participation.

Caroline Morris, a lecturer in public law at Victoria University, in an excellent article for the Statute Law Review, notes that the act seems to have fallen into desuetude. It began with a hiss and a roar in 1994 with 18 questions submitted but enthusiasm has waned significantly since then.

David Lange, in the parliamentary debate on the bill, put his finger on a key issue when he said: "[It] is actually a fraud on the community for the government to ask it for its opinion when the government has said that it will not necessarily follow that opinion".

But it would be a very big step to make citizen-initiated referendums binding as they are necessarily blunt instruments and do not permit nuanced or detailed policy-making. Equally, it would be a big step to repeal the act entirely, as it has the potential to be an important expression of our democracy and an opportunity for the public to attempt to influence the political agenda.

There are, however, some smaller changes we could make to restore public confidence in the system, to improve product quality and to better justify the associated financial costs.

First, we need to revisit the sanctity of the question proposed by petitioners. The Clerk of the House, who is responsible for ensuring the question is clear and is capable of a simple "yes" or "no" answer, can consult the legislative advisory committee and the Justice Ministry in the performance of this function.

Ad Feedback BUT the clerk can offer technical advice only and clarify the language used. There is no real mandate to offer, let alone insist on, alternative drafts.

The result has too often been poorly designed questions. We need greater legislative prescription around what constitutes an acceptable question. Principles could be written into the act to ensure questions will produce results that can unambiguously inform law reform, are not compound in construction and do not lead a response. The quid pro quo for this greater discipline will be greater credibility.

Second, we need to revisit the clerk's role. It was not a role the office sought and is outside the office's expertise. Why not have a panel of experts to which the clerk can refer questions? Or a retired judge?

Third, we need to require a formal response from the government. At the least, this would be a considered explanation of why the referendum proposition will not be acted on.

New Zealand is the first and only country to have legislated for non-binding citizen-initiated referendums. The legislation is experimental and was acknowledged to be so when passed, with Doug Graham, justice minister at the time, indicating it would be reviewed within five years.

Sixteen years later - and with a National government again in the Beehive - it may be time to conduct that review.

* Andy Nicholls is a partner at Chapman Tripp, specialising in public law and competition issues. The views presented here are his own.

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5 comments:

Rumpole said...

Wether the wording is confusing the intent is clear - should parents be criminalised for smacking a child - and John Keys intent is equally clear that he will ignore views, even majority views that differ from his own, in other words my will, will prevail and the taxpayers can get stuffed.He knows that people become disinterested in time and the John Boscowans are rare so constant long term pressure will be required to push what is becoming a world wide phenonima of voter dissatisfaction with politicians and the ignoring of public opinion - UK is a current example were referenda are gaining traction, so perhaps an e-mail campaign initially targeting all MPs with supporting MPs being left alone apart from renewed thanks and the anti's receiving concerted pressure.

belingwe said...

Maybe the phrasing of questions needs some refinement. You only have to look at the NZ Herald opinion polls to see that many are self answering. A sensible response from government would be to put the issue to another vote if the referendum carried the day. while we have all these side issues rferenda will never become binding. Checks and balances have to be in place. government by referenda could risk becoming mob rule. there needs to be respect for individual rights.

Steve Baron said...

As I have said in the press release posted on this blog, there is a need for tighter controls around referendums, and not just the wording of referendums.

My antenna always goes up though, when I hear comments like those of belingwe...who is suggesting "government by referenda"? This is one issue and one issue alone. It is not government by referenda and very few, if any, are suggesting full blown direct democracy to replace representative democracy. Both can work arm in arm.

While checks and balances need to be put in place as belingwe suggests, what checks and balances are in place for representative democracy? One vote every three years? As for mob rule or tyranny of the majority as some refer to, what about tyranny of the minority as we currently have through Cabinet government, where a small number of people decide the future of us all? Some will argue they are answerable to parliament but if a party has a majority of representatives in parliament then there is no answerability.

paulinem said...

I am getting a little .... at the bullshit arrogance of the anti smacking referendum ... they had thier chance to do make changes or kick up a fuss when the petition was circulated ..lets get it right over 300,000 including me signed the petition. If the wording was as bad as the proponents are trying to insinuate there is no way so many would have signed the petition

The wording is totaly correct especially after how the Christchurch dad was treated by the act. Parents need support and encouragement, they need to be encouraged to take an interest in their kids. Now thanks to a women who instead of offering the father support and assitance when he had his troubles with his kids, she choose to instead make his life a living hell with reporting him to the police and demanding charges be laid just to suit her own twisted agenda Now as result this Christchurch guys and his family life has been turned upside and he has been branded a ciminal.

Its why I will be voting NO in the referndum As far as the arrogance of the politicians what else is new but what the heck can we do about it BUT REMIND them come election time.

Dominic Baron said...

Paulinem, you hit the nail on the head: well over 300,000 New Zealand citizens signed the petition for a referendum. They would not have done so had they been at all confused by the question. The question is "confusing" only to those who wish to make it appear so. The concerted attacks on the whole notion of referendums is showing just how low the enemies of real democracy can sink.
We have a tough fight ahead of us, so we must pull together and attack the attackers head on.
There can be no half-measures: either referendums are binding or they are a fraud designed to allow us to "have our say" but *not* to assert our will.
But even this non-binding one is giving the political establishment and its hangers on a scare. They desperately want to scupper it to avoid having to confront the massive "NO" that they can see looming up in front of them like a political tsunami!