Wednesday, November 26, 2003

Direct Democracy I: What's wrong with Winston's proposal

A couple of weeks ago I played at journalist and attended the launch of Winston Peters' direct democracy policy. I've been meaning to blog about the details ever since - unfortunately, other people have beaten me to it. There's an excellent article by Tim Bale in the Herald, which points out (some of) the flaws in Peters' proposal, and Russell Brown was appropriately cynical about the whole thing. Like Russell, I think that

It would be easier to feel comfortable with such a proposal if it wasn't being wielded by an incurable demagogue like Peters.

I'd add that I'd also feel a lot more comfortable if Peters' proposal made the slightest bit of sense, and didn't have loopholes that you could run a Mûmak through.

While Winston gives a lot of detail on the logisitics and timing of the polls, there's very little on the precise form of the referenda, or how they would fit into the existing legal structure. In particular:

  • Clarity: Referendum questions must be able to be "clearly understood", but what exactly does this mean? One of the reasons our current referenda system is non-binding is that the questions are one-liners or general policy statements, requiring legislation to implement them. What would it mean for such a statement to be binding on the government? For example, how would the infamous law and order question posed in 1999 have translated into actual law if it had been binding? While there's a clear direction, there's no detail for implementation - in fact, it's so vague that the present government could argue that they've complied with the public's wishes.
  • Amendment? The usual way of solving the above problem is for referenda to be votes on proposed legislation - in other words, they are an alternative way of passing a bill into law. But would a law passed by the public be treated just like a law passed by Parliament, able to be amended by simple majority, or would the proposed 75% supermajority required for a veto also apply to amendments? If the former, then it will be relatively easy for a government to gut any undesirable provision passed by the public; if a supermajority is required, then we have a Californian system, where contradictory referenda progressively bind the hands of government until it is incapable of functioning (now wouldn't the Business Roundtable like that?)
  • Affordability: Winston's scheme would only allow a vote if "the referendum’s objective is capable of being met within the country’s fiscal constraints". But who decides? The government? Bring on the Mûmakil! But if not the government, then who?

Make no mistake - I think there's a place for citizen's initiated referenda in our parliamentary system, but I don't think Winston's proposal is up to it. Unfortunately, as Tim Bale points out, it is difficult to criticise binding referenda without coming across as "a sniffy liberal afraid of real democracy". So, sometime over the next few weeks, I'll try and put together a few posts on how I think it can be done properly...