Sue Bradford wants to improve the Citizens' Initiated Referendum (CIR) process. I say just dump it
Now the smacking referendum is nearly upon us, the nation's political class seems to have reached the consensus that (1) this vote is a pointless waste of money; and (2) the CIR process itself is broken. My immediate response to these conclusions is "What took you so long?" A colleague from Victoria University, Caroline Morris, told us this five years ago; while her Masters student, Ben Goschik, also outlines various problems with the CIR process here.
However, I guess it takes a crisis (whether real or invented) to grab parliamentarians' attention. Confronted with having to spend close to $9 million on asking the public a question that is both ambiguous and loaded, Sue Bradford is leading the charge to fix things for the future through a Member's Bill to amend the CIR Act.
(Incidentally, if there are any readers out there who think the current referendum on child discipline isn't ambiguous or loaded, consider your response if it was suddenly reworded to ask: "Should our law allow parents to give their child a good whack every time they think their child has misbehaved in any way at all?" After all, this is the same basic question as the current referendum asks, just reworded in a somewhat less sympathetic fashion.)
Bradford's complaint is that the current CIR Act puts only two substantive restrictions on the questions that can be asked. Any question must "convey clearly the purpose and effect of the indicative referendum"; and "ensure that only one of two answers may be given to the question." Responsibility for ensuring the referendum question meets these requirements lies on the Clerk of the House. However, provided a proposed question does meet these basic tests, she cannot reword it in a way that is "fairer" or "less ambiguous".
To avoid referenda that load the dice through the way that they are worded, or ask voters to answer yes or no to (at least) four sub-questions within one overall question, Bradford wants to give the Clerk the power to reject questions that are "ambiguous", "complex", "leading", or "misleading". These terms would then be defined further in the legislation, so as to give some guidance in that exercise.
All this is noble in its intentions. After all, if the citizens' voice is to be heard, it should be clear and not manipulated into providing a pre-determined answer. And yet I still think Bradford's attempts at reform won't work. Here's why.
First up, no matter how tightly you try to define concepts like "ambiguous", "complex", "leading", or "misleading", you will end up with grey areas that invite dispute. One question that then arises is whether the Office of the Clerk of the House is best placed to handle such disputes, or will it plunge what should be a non-partisan, neutral institution into undesirable controversy. A second problem is that, inevitably, such disputes will end up coming before the courts, as the Clerk's decision to reject (or accept) a particular question is challenged by its supporters (or opponents). Rather than improving the CIR process, these proposals may just make it into a lawyer's playground.
Furthermore, the desire to ensure questions are as neutrally phrased and unambiguous as possible is in tension with other aspects of the CIR process. Remember, to get a question put before the voters, its supporters first must gain the signatures of 10 percent of registered voters. That equates to some 300,000 people, whose support must be gained within a year and at a cost of no more than $50,000. In order to generate the kind of enthusiasm needed to sustain this effort, the question asked must evoke some passion. Simply put, can you get 300,000 interested in the question "Should Parliament have enacted The Crimes (Substituted Section 59) Amendment Act 2007?", as opposed to "“Should a smack as part of good parental correction be a criminal offence in New Zealand?”
This last point then raises doubts about whether the entire enterprise is worth the bother. As the 1986 Royal Commission on the Electoral System concluded, referenda are "blunt and crude devices" for addressing public policy matters. The CIR process we have adopted only really applies to matters that stir the public passion (thus attract the 300,000 signatures needed to trigger it), but then demands that the matter be resolved in a purely black or white/yes or no fashion. Then this answer carries no more weight with government than a (very expensive) public opinion survey. No wonder that at the time of the CIR Act's passage, David Lange described the whole exercise as "a fraud on the community"!
It's not that I'm against referenda in general. They are a moral necessity in matters of basic constitutional change, as was the case with the 1992 and 1993
votes on the electoral system. (I think the promised referendum on MMP for later this year is a bit silly, but if National really is thinking of change in this field then it must go ahead.) Parliament's diversity post-MMP largely has obviated the need for referenda on moral or social policy issues - like smacking, or prostitution reform - but there may still be room for direct public votes on important matters where a lasting political consensus is sought. (The 1997 vote on Winston Peters' superannuation scheme is a possible example of this.)
However, the CIR experiment just hasn't worked in New Zealand. Tinkering with it to try and fix the questions that get asked doesn't really touch this basic fact. So rather than rearrange deckchairs on the Titanic, I think we should just go for the lifeboats and let the whole thing sink into oblivion.