Are you ready to maybe vote in a non-binding referendum on whether Parliament should treat such non-binding referenda as binding? Or, does your head hurt yet?
Following on from the "success" of the anti-anti-smacking law petition and resultant Citizens' Initiated Referendum asking us "Should a smack as part of good parental correction be a criminal offence in New Zealand?", Larry Baldock is gunning for bigger game. This time he's out to change our system of representative democracy.
Of course, I put quote marks around the word success in the previous paragraph because for Larry Baldock and his compadres, the fact that s.59 remains in the Crimes Act means the battle is not yet won. Sure, the high priest of un-PC parenting, Nigel Latta, may have concluded that police and social workers are not prosecuting "good parents" just for "smacking" (as well as having some pretty scathing words for some in the "pro-smacking" lobby). Sure, John Key's promise to repeal the law if it is shown not to be working remains on the table. But the people spoke and they weren't listened to. So now things have to go to a whole new level.
In fact, Larry Baldock wants another Citizens' Initiated Referendum, asking us whether such referenda results should be binding on Parliament. He put his proposed question - "Should Citizens Initiated Referenda seeking to repeal or amend a law be binding?” - to The Clerk of the House of Representatives back in September. Following some submissions on that wording, The Clerk has just announced her decision that the question will be: "Should Parliament be required to pass legislation that implements the majority result of a Citizens' Initiated Referendum where that result supports a law change?"
There's no guarantee we'll ever have to vote on this issue. To force a referendum, Larry Baldock et al will have to gather some 300,000 signatures in the next year. That's a tough ask. I guess we'll have to wait and see if this issue raises the same passion as did the anti-anti-smacking cause, but early indications don't look promising.
But let's say the requisite number of people do put their names to this proposal. Or, to put it another way, should you be one of those who do so? Is Larry Baldock's suggestion a good one, worthy of support?
It may come as no surprise that I think not. First up, the actual question doesn't really give much guidance on what you're going to get from it. I get the basic concern that underpins it: "we live in a democracy, don't we? The bloody government should do what we, the majority, want!" More on that sentiment later.
But what does it actually mean to require legislation be passed "that implements the majority result" of a referendum supporting a law change? (Of course, even if a majority voted in favour of this question, it wouldn't actually "require" anything as that referendum couldn't legally bind Parliament ... at most it would indicate to MPs that they ought to treat future referenda results as if they were legally binding on them.)
Let's take the anti-anti-smacking referendum as an example, and just agree for now that the majority voting in that referendum did want some sort of change to s.59 of the Crimes Act. What would Larry Baldock's proposed question do to this issue?
Well, obviously Parliament would be "required" (albeit in a moral, not a legal sense) to pass a law to implement the majority result and make a smack as part of good parental correction not a criminal offence. Simple enough, right? But just how is Parliament meant to implement that result? Simply get rid of the ban on using force for correction altogether, as Larry Baldock wanted? Or amend s.59 to permit a defined level of "reasonable force" for corrective purposes, as John Boscawen proposes? I mean, does the majority result in the referendum require that Parliament allow parents to use wooden spoons and rulers on their children or not?
More seriously, the point is that legislative choices are very rarely black or white, either/or in nature. So simply saying "I don't like what Law X says at the moment, change it to not X" doesn't really get you all that far if there are numerous possible "not Xes" available. Of course, maybe the point simply is that our politicians should have to do something in response to a majority result at a Citizens' Initiated Referendum. But why should that something have to be immediate legislative change? Why can't it be a careful review of the issue by trustworthy outside eyes, to reassure the public that the concerns they have expressed through the referendum result do not really exist?
Furthermore, changing a law to "not X" in response to majority disapproval of "X" won't necessarily result in an outcome that the majority wants. Returning to our example, let's say that following the anti-anti-smacking referendum Parliament did simply repeal the s.59 ban on using force for corrective purposes. It is then entirely possible that a majority of voters would rather see smacking banned altogether than return to a world where parents had free reign to punish kids using bamboo sticks, chains or hosepipes. In which case, Parliament's action still isn't in line with what the majority wants the law to say. (Note, though, that you wouldn't be able to have another Citizens' Initiated Referendum on the issue for 5 years!)
All of which brings me to the deeper point regarding the basic "the bloody government should do what we, the majority, want" sentiment lying behind this question. Simply put, trying to make our democratic institutions and processes subject to this sort of simplistic populism is a mistake. Yes, it is the people that elect MPs as a vital means of accountability (most importantly, it enables us to ensure no one party or set of individuals become too comfortable in positions of power by regularly and peacefully making changes at the top). And yes, government and legislative processes work on the basis of what a majority of MPs think is the best thing to do. But to go from this to a claim that the law therefore should reflect "what the people want" ignores just what those government and legislative processes do. They introduce a crucial element of deliberation and consideration that is absent when we simply tote up the raw preferences of the general public on an issue.
However, don't take this from me. My colleague at the Auckland Law School, Richard Ekins, has co-written with Alex Penk a far more lucid and in-depth discussion of the issue than I could hope to. Furthermore, he's written it for the Maxim Institute, and he's no fan of the current s.59, so don't dismiss him out of hand as "just another liberal lefty academic"! I'd suggest you click on the link and read what they have to say - then decide if you still think Larry Baldock's proposal is a good one.
Comments (20)
Perhaps Larry would be happy if Parliament amended s 59 to read:
59 Parental Control
A smack, as part of good parental correction, is not a criminal offence.
Would it really be that much worse than:
59 Parental Control
Every parent of a child ... is justified in using force if the force used is reasonable in the circumstances and is for the purpose of ... performing the normal daily tasks that are incidental to good care and parenting.
That said, I would note that John Boscawen's bill (based on Chester Borrows') does not define a level of reasonable force, but rather keeps the old level ("reasonable in the circumstances" - also the level in the current s 59), but specifically excludes some force from that. It doesn't so much define reasonable force as define unreasonable force. Even if someone jumps through all the hoops - no weapon/implement, trifling, transitory, etc. - the force can still be found unreasonable. It's a subtle distinction, but an important one.
But on to your substantive post ... I don't imagine you're surprised the Clerk didn't "veto" the proposal, but the LAC were a bit out of line in even suggesting that, weren't they?
Prospective binding CIR can certainly be problematic, but as you narrow the circumstances in which they can be used, the problems to lessen somewhat. If we were to have binding CIR, making them like those in Italy (not the best democracy to be modelling ourselves on, I know) would seem a reasonable compromise.
If a set number of signatures can be reached within six months or a year of Parliament finally passing a piece of legislation (budget/tax excepted), calling for a referendum overturning the law, I don't see that the particular concerns you raise (e.g. California) would arise. Getting the populous to write law would raise all sorts of problems, giving them the final say on law passed by Parliament raises far fewer.
return to a world where parents had free reign to punish kids using bamboo sticks, chains or hosepipes ...
Whoa, slow down.
First, the chains example has nothing to do with section 59. The charges on which the guy was acquitted were kidnapping and cruelty to a child. I'm not defending the acquittal, just saying: you can't use it as a stick with which to beat the former section 59 law. Excuse metaphor.
Second, parents never had "free reign". Force used for the purpose of correction had to be reasonable in the circumstances. From time to time, some juries took a charitable view of what was reasonable in the circumstances (charitable from the parent's perspective) - as with your bamboo stick example, the hosepipe, and another Sue Bradford favourite, the riding crop.
I might have been a little cursory myself ... what I should have said was, you can't use it as a stick with which to beat the former section 59 law, because you don't know why the jury acquitted. There's no way of knowing whether they decided the elements of the section 195 charge had not been made out, or were swayed by the judge's summing up - and I would want to read the context of that bit reported from the summing up.
Graeme,
"I don't imagine you're surprised the Clerk didn't "veto" the proposal, but the LAC were a bit out of line in even suggesting that, weren't they?"
Let me just say (1) I was not at the LAC meeting that discussed the CIR proposal, and (2) I only saw the letter to the Clerk after it was sent. Further than that I cannot go.
Claire,
But we never know just why a jury acquits, do we? And so the only point we can know is that the previous law provided the chain man (and other quite extreme examples of physical force) a possible defence in law. And can't we then argue "it is a bad thing that he was even able to claim this, irrespective of whether it actually got him off"?
Or - let's put it another way. Imagine there existed a defence to a rape charge along the lines "she was asking for it". Several persons charged with rape argue this defence and subsequently are acquitted. Does the fact you can't know the acquittal resulted from that defence mean that you can't use these cases "as a stick to beat" the existence of the defence in law?
Andrew - yes. You win.
By way of further clarification: because I was talking nonsense. But only on the first point. Still standing by the second one ...
Yes, yes Claire ... "free reign" was an editorial exaggeration. I should have written, "free riding crop".
But we never know just why a jury acquits, do we?
And of course, they don't even have to agree. Half the jury might have used s 59. Another few thought the Crown hadn't proved intent, and still others that there was self-defence or reasonable doubt about whether the act actually occured. As long as they're all agreed on the result, there can still be an acquittal.
"Simply put, trying to make our democratic institutions and processes subject to this sort of simplistic populism is a mistake."
Yes indeed, we can with perfect confidence abandon the governance of our nation to scrupulous persons like Philip Taito Field, Donna Awatere Huata, Winston Peters, Rodney Hide and the rest. Just as we abandoned the economy, and isn't it doing well.
Stuart,
Well, of course if people are dumb enough to elect such people, the answer is to give the people a direct say over what laws we should have. Obviously.
The kind of system Baldock et al want, is the same kind of system that prevented Switzerland's women from getting full suffrage until 1971. And I haven't touched on the minarets issue either.
Andrew - the government they deserve again?
Elite cynicism.
Stuart,
Errr ... and just how do YOU explain their presence in Parliament? And don't go blaming the political parties. Field was voted in from the Mangere electorate. Hide from Epsom. Peters from Tauranga (until 2005). Awatere-Huata is the only list MP you mention. So, if you can square the circle of: (1) these people were directly elected as representatives by the voters; (2) these are unscrupulous people who shouldn't be trusted with power; (3) therefore we should give the voters responsible for giving them power even more decision-making power, go for it!
Lets just run your argument a little further shall we...
We have in parliament a bunch of guys who could've given Judas a hint or two, a viler collection of invertebrates than you'll generally find in a parasitology lab - and you are offended by a public desire to reclaim a proportion of the decision-making process. Do you have personal political ambitions then?
A proper referendum process would be a very healthy restraint on parliamentary excess, as would citizen juries on a number of issues. MP compensation, for example, would be a good issue to determine by citizen jury.
As regards certain miscreants being voted in, the possibility of stupidity cannot be ruled out. Or fraud.
But on your third point - the MPs are accomplished professionals, while the citizens are only amateur scoundrels. The latter will, on average, do less harm.
Yes, yes, Stuart. Cynicism about elected officials is very fashionable, and I'm sure your rhetoric plays well in the cheap seats. Perhaps you have ambitions to be a Catalina?
That said, sensible proposals on "proper referendums" or "citizens juries" are interesting. Perhaps you could expand on them, and leave the invective to one side?
Actually Sulla would be more to my taste - Roger Douglas is somewhat overdue for an encounter with the cruel spear.
One of this first things to remember about democracy is that it does not exist to emplace a corrupt elite at the head of society, but to make those decisions and revisions to laws and regulations necessary for the proper governance of a country, on behalf of citizens. MPs are only a means to this end, and it is an absurdity that we saddle the country with so many, on a model substantially unchanged since the glorious revolution. Four times as many MPs per capita as Australia, in an age in which, far from being compelled by the tyranny of distance to delegate to various unsavory characters, the various communications revolutions have in fact made the direct exercise of an individual franchise a real possibility.
A proper referendum process should probably run at three levels, in terms of strength of result and political consequences. A result returning a good prediction that, say, forty percent or more of the population hold a particular view, should be considered a strong advice to parliament, they should be required to show some cause for not following such an indication of the public taste. A result showing 60% of population at a 95% confidence level should be enough to force politicians to redraft a piece of legislation, and a result showing 80% support at 95% of confidence should require parliament to strictly follow the direction of the referendum.
Citizen juries have been used with some success in the Netherlands, but MPs are reluctant to use them in more than superficial roles, because they highlight the redundancy of the traditional system. Typically they have been used to solve city planning impasses, but I think they could be routinely used in matters like MP and civil service compensation, to avoid the otherwise inevitable conflicts of interest.
But my cynicism about our elected officials is merely a reflection of the very low and loathesome assemblage of invertebrates that have been running my country so badly for as long as I can remember. They are so bad that I believe there is an urgent need to reform our political system; the party system has long ceased to generate meaningful debate on most issues, which makes it redundant.
This cynicism is fashionable because plenty of folk are equally unimpressed.
To make the comparison with Australia more specific:
NZ 128 billion GDP 4.3 million people 120 MPs
Oz 1 trillion GDP 22 million people 226 MPs
We seem to have a few too many, on a par with Switzerland in fact. But Switzerland has 4 times our GDP.
There are many significant reforms NZ should make to climb out of its long recession - capital gains tax, increased social housing construction, restrictions on foreign capital flows, a mirror tarrif policy - all much too bold for the parasites presently running parliament. But slashing a third of parliamentary seats is perhaps the simplest obvious measure, and the savings will be enormous. A four year electoral cycle will also save a lot of money. Pushing the reform out 10-15 years so as not to advantage sitting governments can smooth out the transition, and I'm confident both measures will attract broad public support.
Stuart,
Of course, one might question whether your comparison is entirely accurate, given that you ignore the federal nature of Australia and the fact each state/territory has its own set of representatives. Don't these folks need counted, too? But on the general question of "do we have too many MPs?", you might like to track down the Justice & Electoral Committee's report on the "99 MPs Bill" from the mid-2000s. It goes into the issue in quite some detail.
Your points on binding referendum are fair ... but note that they still mean Larry Baldock's question is problematic. If you want MPs to have to "redraft" legislation in response to a referendum outcome, or "strictly follow" its result, you need to have tightly worded questions that can provide such guidance. Nothing in what Larry Baldock is proposing will get you there.
Finally, citizens' forums? What a good idea.
Whichever way you look at it, NZ MP numbers are on the high side, and one explanation for the partial 'worst of' list cited above is simply lack of talent.
My support for refenda has little or nothing to do with Larry Baldock, it springs rather from an ideal of improved representation. If there were a strict set of formal criteria for referenda, they would probably be phrased more tightly to acheive their ends.
My idea that 60% require legislation be redrafted is not necessarily a demand that it's aims be reversed, the object is to require parliament to try to find a better accomodation with the wishes of the majority.
The 80% referendum would have several interesting consequences - for instance, the public might intervene to stop something like the sale of state assets. It would provide a healthy alternative route to the frequently unreliable parliamentary process, and reaffirm the idea that the people make the laws of their country.
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