“The idea that referendums will improve the quality of New Zealand’s democracy is a delusion. Many steps can be taken to improve the quality of New Zealand’s democracy. The increased use of referendums is not one of them. The Citizens’ Initiated Referendum Act 1993 should never have been passed. The Act should be repealed.”
- Sir Geoffrey Palmer, Dominion Post, December 24, 2014.
In a newspaper article late last year, constitutional lawyer and former Prime Minister Sir Geoffrey Palmer called for the abolition of the Citizens’ Initiated Referendum Act. This week’s NZCPR Guest Commentator Professor Martin Devlin, a member of the Independent Constitutional Review Panel, rejects Sir Geoffrey’s recommendations, believing – like many other New Zealanders – that for twenty years citizens initiated referenda have played an important role in our democracy:
“Sir Geoffrey sees in referenda, a powerful voice of the people which governments and politicians do not like, for this is the people talking, not the disingenuous politician who, though purportedly in office to express the will of the people, often believes that he or she is there because he or she personally deserves to be there”.
As well as calling for the abolition of citizens’ referenda, in his article Sir Geoffrey recommends radical changes such as entrenching the Bill of Rights in a new written constitution (to put lawyers and judges in charge of law-making in New Zealand) as well as “Better protection of Maori values and aspirations”.
In his critique, An Arrogant Approach to Democracy, Professor Devlin explains that underpinning the Maori rights agenda is the partnership myth – a discredited political construct based on fabricated claims of Treaty supremacy. Nonetheless, the concept is being used by the government to justify co-governance, an anti-democratic 50:50 power sharing arrangement, whereby half of the representatives on an official body controlling public resources act for a minority group of tribal elite, while the other half represent the vast majority of New Zealand citizens.
As Professor Devlin points out, “I would bet that if such a proposition as ‘co-governance’ were to be openly put before the people of New Zealand, in a referendum, it would be rejected out of hand. So, in my opinion, the strategy of the Left is clear – reduce the power of the people; do not, whatever you do, allow the people to decide important issues via referenda; and rejig the process of government, judiciary and public service accordingly, to ensure the intentions of those in positions of power, not the people at large, take precedence.”
It can be argued that it is the detractors of citizens’ democracy, like Sir Geoffrey, that are out of step with society, and that more direct participation is needed, not less. Especially at a time when nations around the world are struggling to find better ways to connect with voters and keep them engaged in the democratic process.
New Zealand is no exception. A million eligible voters did not bother to vote in the 2011 General Election – the lowest percentage turnout for an election in over 100 years. Only 93 percent of the 3,276,000 eligible voters were enrolled, and with only 2,257,336 people voting, more than 1 million who could have voted, stayed at home.
According to the Electoral Commission’s 2011 General Election review, almost a third of non-voters said “it was obvious who would win so why bother”. This was up from 19 percent in 2008, when it was a tighter race. Other reasons for not voting in 2011 were similar to 2008 and included 9 percent with “work commitments”, 14 percent with “other commitments”, 14 percent who “couldn’t be bothered”, 11 percent who “could not work out who to vote for”, and 8 percent who thought their vote “would not make a difference”.
Some 64 percent of the non-voters had considered voting in the election, and 43 percent made their final decision not to vote on Election Day. A third indicated “I don’t trust politicians” was a key factor in their decision not to vote. In other words, more than a quarter of a million New Zealanders who were eligible to vote were too disillusioned with politicians and the political system to vote.
Looking back, it was voter anger and disillusionment that led to New Zealand’s adoption of MMP in the early nineties. The problem is that two decades on, many now believe that MMP is responsible for the increasing alienation of voters.
While MMP certainly gave New Zealand a more diverse group of parliamentary representatives, the extreme nature of some of the ideas they promote is a serious concern. By rights, the main coalition parties – National and Labour – should safeguard citizens by rejecting the more radical policies proposed by minor parties. But that’s not how MMP seems to work. To the dismay of centre-right voters, John Key’s National Government has been pushing the Maori Party’s Treaty supremacist agenda onto the country, while under Helen Clark’s Labour Government the Greens’ radical environmental and extreme socialist ideals were forced into law.
These actions are exacerbating public disillusionment with representative democracy – especially as the abolition of New Zealand’s Upper House of Parliament in 1951, has left us with no public safeguards to constrain government power. Since MMP seems to be here to stay, the answer surely lies in empowering the public and harnessing their wisdom through citizen’s democracy.
In Switzerland, citizens initiated referenda are a bedrock democratic institution, that has enabled the country to become one of the world’s most successful and prosperous nations.
In the USA, almost half of the states have embraced some form of direct democracy, and while their approaches vary, most tie the support level needed to trigger a referendum to the voter turnout at the last election for Governor. Given that in New Zealand around 800,000 registered electors did not vote in the last election, and so are unlikely to bother to vote in a referendum, using the “turnout” vote as the reference, rather than the number of registered electors, would be more reasonable, especially as it is compulsory to register, but not to vote.
As the Citizens Initiated Referendum Act stands, the support of 10 percent of the 3,070,847 registered electors – around 307,000 signatures – must be collected within 12 months for a referendum petition to succeed. We suggest that it should be changed to 10 percent of the 2,257,336 “turnout” vote, or 226,000 signatures.
To be consistent, however, if support for a referendum petition is pegged to the turnout vote, the referendum vote should be too. In other words, for a referendum to succeed, the number in favour should be more than 50 percent of the turnout vote in the last general election. This would ensure that the referendum is not “captured” by powerful vested interest groups that have the ability to run strong campaigns, but don’t necessarily represent the views of the wider public. If Citizens Initiated Referenda results are pegged to the turnout vote in this way, there is no reason why they should not be binding on the government.
A couple of examples will demonstrate how the system would work in practice.
The Green Party’s anti-smacking law was foisted on the country in 2007 as a result of political deal-making: there was no evidence that child abusers would take any notice of a smacking ban, and opponents warned the new law would undermine parental authority.
A Citizens Initiated Referendum against the law change was held in 2009, when 87 percent of the public voted “No” to the question “Should a smack as part of good parental correction be a criminal offence in New Zealand?”
With 2,356,536 voters turning out at the 2008 General Election, the 1,470,755 “No” votes represented 62 percent of the turnout vote, and the referendum would not only have succeeded, but it would have been binding on the government.
In comparison, last year’s Citizens Initiated Referendum on asset sales was launched not long after the government had won a mandate at the 2011 General Election for their asset sales programme. Since the referendum was promoted by the Greens, Labour, the Trade Unions, and Student Unions, as well as Grey Power, it was widely regarded as a political stunt, and many people didn’t bother to vote. In response to the question, “Do you support the Government selling up to 49% of Meridian Energy, Mighty River Power, Genesis Power, Solid Energy, and Air New Zealand?”, 67 percent voted “No”.
However, with a 2011 General Election voter turnout of 2,257,336, the 920,188 “No” votes represented around 41 percent of the turnout vote, and the result would not have been binding on the government.
Provisions should also be made to allow citizens to veto laws that have just been passed. Because a Citizens’ Veto challenge would delay a new law from being enacted, haste would be required. Again, using the US model, support for a successful veto petition should be set at 5 percent of the turnout vote, with a 3 month time frame to ensure there is strong public support for the veto. Referencing to the 2,257,336 voter turnout at the last election, veto petitioners would need to collect 112,867 signatures within 3 months to succeed. The outcome of the referendum – if it exceeded 50 percent of the turnout vote – would be binding and would result in the new law either being approved by the public and enacted, or rejected and repealed.
The key point is that if Citizens Initiated Referendum results were to be tied to voter turnout, the government could be assured that only propositions that had widespread public support would succeed. This would remove a key objection to making referenda binding. It would also mean that radical law-change proposals, with no public mandate, would be unlikely to make it past the discussion stage. The end result would be a government far more accountable and responsive to the people they were elected to represent – ‘government of the people, by the people, for the people’.
Those yet to be convinced of the merits of citizens’ democracy should think on this: under the previous voting system, each Member of Parliament was directly accountable to their electorate. If the people in their electorate lost confidence in them, they were voted out. Under MMP, however, there are 50 list Members of Parliament who are no longer directly accountable to the public – only to party bosses. Binding referenda with the safeguard mentioned above would restore the balance and ensure that the people could always have a final say.
Citizens’ democracy is the way of the future. Unfortunately, since most of the political establishment see it as a weakening of their hold on power, the impetus for change is likely to come, not from the politicians, but from the people.
Last year the NZCPR signalled that we were establishing a people’s movement for change. I am pleased to announce that the Five Principles Movement campaign site is now up and running at www.5PM.org.nz. The five principles on which the movement is based are:
- Democracy – strengthening democracy through binding referenda,
- Equality - promoting equal rights with an end to preferential treatment based on race,
- Opportunity – creating an opportunity society so New Zealanders can get ahead,
- Freedom – protecting private property rights as a foundation of individual freedom, and
- Family – promoting social policy that strengthens the family.
By harnessing the wisdom and power of informed citizens, we hope 5PM can help to change the future of New Zealand! We invite you to visit the 5PM website HERE – to find out more and to register your interest.
THIS WEEK’S POLL ASKS:
Do you agree with Geoffrey Palmer that the Citizens Initiated Referendum Act should be repealed?
Click HERE to vote
- read this week’s poll comments HERE
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