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.

Comments (4)

by Bruce Thorpe on June 18, 2009
Bruce Thorpe

David Lange got this one right. It is a fraud. The publc may vote but the parliament is not required to obey. And a good thing too, in my opinion.

Ddemocracy meaning a universal vote to choose our rulers has its disadvantages, but seems to be a characteristic of stable, non-authoritarian states which manage a periodic change of personnel at the top without any recourse to violence.

The notion of a democracy by means of majority decisions seems a reasonable way to run a public meeting but a bloody imppossible way to attend the running of a ship, or even a business, let alone a complex society.

You have raised two points of inevitable conflict, that the issue must raise the public passion sufficiently to gather 300,000 signatures in a year and be structured to be answered with a simple  yes or no.

You have convinced me but will your view prevail?

I doubt it. Somehow this society seems deeply attached to a running argument with Sue Bradford. She is always right and she usually gets her way, but surely there are better ways for us to work through these issues?

 

 

 

 

by Tim Watkin on June 18, 2009
Tim Watkin

Hear Hear Andrew. Outside of consitutional issues, referenda are a nonsense. They over-simplify, they mislead, they focus on issues of high passion rather than high importance and they actually undermine parliament. You've saved me from writing a similar (but inferior) post, so thanks.

On Bradford's efforts to tidy up the quality of the questions, I ask only this: Is any question not leading? (And yes, that's a leading question).

by Craig Ranapia on June 20, 2009
Craig Ranapia
A reader over at Public Address System described CIR as very expensive opinion polls no reputable pollster would put their name to because the questions are so thoroughly FUBAR, and self-selecting samples have insurmountable credibility problems anyway. Couldn't put it better myself. Now if lobby groups want to commission (and pay for) dodgy polls, and use them as a basis for campaigning for legislative changes they're perfectly entitled to do so while I point and laugh. But having them conducted under the auspices of an electoral agency is a pretty spurious form of authority.
by Steve Baron on February 23, 2010
Steve Baron

One of my first university lecturers suggested the best advice he could offer was to challenge everything he said, and to come to my own conclusions. In other words, don't believe everything you are told, even by an esteemed university professor. These words flooded back to me when I heard Raymond Miller, an Auckland University political scientist and media commentator, calling for the 1993 Citizens Initiated Referenda Act, to be repealed on the Paul Holmes Q&A television show. Former Prime Minister and law professor, Sir Geoffrey Palmer, has often suggested the same. In his 1997 book Bridled Power he said, “the Act should be repealed. It appears to offer a chance for citizens to influence policy, but in substance that opportunity is like a mirage in the desert. Referenda should be reserved for those few and important issues of constitution and conscience that should be bound by the people's voice.”

Given the huge number of conscience votes in Parliament over the last decade on extremely polarizing issues, I for one would have loved to hear Sir Geoffrey calling for citizens to decide these outcomes in a referendum... where were you when we needed you Sir Geoffrey? If referendums are a mirage, then what of representative democracy? Does it not also give citizens the illusion they can influence policy, because they get to vote once every three years at an election? Yet the day after an election a government can break every promise it has made, and often has. Perhaps we could also repeal representative democracy?

The weakness of representative democracy is that once a government is elected, there are few checks and balances between elections. The public is basically excluded. While proportional representation and coalition governments may have slowed Cabinet government to some extent, voters generally have to accept whatever the government decides it wants, even if the majority of citizens disagree as they did in the 2009 smacking referendum and even if the government of the day represent only 36.78% of those illegible to vote, as was the case with the 2008 National/Act Party government. Yet they rule 100% of the people.

It would seem strange that academics like these would be making calls to repeal the CIR Act. Surely what New Zealanders seek is a strong and robust society, where there is a true exchange of information between the elected and the electorate, not the “thin” representative democracy that Benjamin Barber refers to in his book Strong Democracy. A democracy controlled by political elitists and influenced by academic elitists who have little respect for the will and collective wisdom of voters is surely undesirable.

There is no doubt that the CIR Act needs to be made more robust to ensure referendum questions are not bias, misleading or ambiguous. More effort also needs to be placed on supplying voters with balanced information, giving the pros and cons of the referendum in question via an official referendum pamphlet and website.

US President Thomas Jefferson said it best when he said,   “I know of no safe depository of the ultimate powers of the society but the people themselves; not enlightened enough to exercise their control with wholesome discretion, the remedy is not to take it from them, but to inform their discretion. Enlighten the people generally and tyranny and oppressions of body and mind will vanish like evil spirits at the dawn of day.”

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