Friday, September 18, 2009

Binding referenda: Clarity

Should Citizens Initiated Referenda seeking to repeal or amend a law be binding?
That's Larry Baldock's latest referendum proposal, currently before the Clerk of the House. I've posted a bit on the issue before, but that was before the exact referendum wording was released. Now that it has been, I've been convinced to have another go at it - and the issue of binding referenda generally.

On the face of it, the idea of binding referenda is simple: the referendum proposes something, the people vote, and if it passes, the desired changes are made. But that glosses over what has been the key problem with referenda in this country: a lack of clarity about what is actually being demanded. The classic example of this is the referendum run at the 1999 election, on the question of

Should there be a reform of our justice system placing greater emphasis on the needs of the victims, providing restitution and compensation for them and imposing minimum sentences and hard labour for all serious violent offences?
Which by chaining together a long list of proposed changes, allowed MPs to claim they had acted on it by acting on some of them. Then there's this, more recent example:
Should a smack as part of good parental correction be a criminal offence in New Zealand?
Which quite apart from its false premises and unclear meaning (its about smacking parents for the purposes of correction, right?), demanded no specific action at all, let alone a law change (which is a claim Baldock will almost certainly make if his latest referendum passes).

Then there's this one, which you may find familiar:

Should Citizens Initiated Referenda seeking to repeal or amend a law be binding?
The question you should be asking is "how"? What does Baldock actually want? If it passes, does he want Parliament to:
  • Pass a law which establishes referenda (with appropriate turnout limits, checks and balances etc) as an equal source of law with Parliament?
  • Amend the Citizens Initiated Referenda Act 1993 to say "and Parliament must act on the result"?
  • Set up an inquiry to investigate how binding referenda could be incorporated into our constitutional structure?
  • Promise to act on the outcome of future referenda?

Baldock may well have an answer. But as its not in the question, the government has no way of knowing how it is expected to respond. While apparently quite clear, Baldock's latest proposal falls into the same trap as previous efforts.

As I said, its all about clarity. In order to be binding, a referendum will have to state very clearly what it wants the government to do. And that's not just "clearly" in "understandable by the voter" terms - because as we've seen above, that's not actually that clear - but "clearly" in legal terms. If a referendum proposes amending a law, it has to say exactly how, in the form of an actual legal amendment as you would find in a bill. And if a referendum proposes repealing a law, it will have to say exactly how, and what, if anything, the law will be replaced with - because "repeal" doesn't do what you think it does. In other words, we will have to vote on actual legislation, just like MPs in Parliament.

That sounds scary, but its not. Legislation isn't actually that hard to understand if you read it yourself, and in the context of a referendum campaign there will always be the media, lobby groups, and experts to help explain the proposed changes. We'd have to judge whether we want it, and tick a box for "yes" or "no". Even in a representative democracy, that seems like an attractive idea. Why shouldn't the people - who are supposedly sovereign and whose consent underlies our whole system - have a lawmaking role if we want one? The onus really is on the opponents of binding referenda to say why not.

I have no interest in making that argument. Instead, over the next few posts, I'll be looking at the problems of referenda, and hopefully how we could make them work.