Sunday, September 06, 2009

A referendum on referenda

Frustrated by the failure of his referendum to convince politicians that child beating is, in fact, OK, Larry Baldock has decided to launch another one - this time on whether citizens' initiated referenda should be binding. It's a proposal I have some sympathy for - in a democracy the people should ultimately rule - but it would mean significant changes to our referendum system. For a start, it would mean an end to the ambiguous, complex, leading and misleading questions stuffed with motherhood and apple pie beloved of Baldock and his ilk. The question in the recent referendum, for example, is simply too unclear to ever be considered binding (and the same goes for every referendum ever held under this Act). If we want binding referenda, then we need to move past these grandstanding questions to voting on specific pieces of legislation, either positively ("should [attached bill] become law?") or negatively ("should [this Act] be repealed?").

(It is worth noting that nothing in the current law prevents such simple, unambiguous questions being asked at present. But the proponents of referenda prefer to grandstand rather than work towards actual change).

A second concern is human rights. New Zealand law is required to be consistent with the Bill of Rights Act, by implication with the Human Rights Act, and increasingly with the Treaty of Waitangi. Bills presented to Parliament have been through a policy process which (theoretically at least) has examined all those issues, and there is a legal requirement for the Attorney-General to raise any issue of consistency with the BORA (something we should have for the Treaty as well). If referenda are to be made binding, they will need similar checks and balances to ensure consistency - and arguably stronger ones, given their potential (hell, stated desire) to be used by majorities to oppress and abuse minorities. One suggestion has been for formal judicial review of proposals, and that seems like a good idea to me.

Somehow, though, I suspect Baldock won't bother to include such checks and balances in his proposal, or nail down any policy details at all. Instead, it'll just be more grandstanding. By doing so, he gives politicians a perfect excuse to ignore the result - and he will have no-one but himself to blame when they do.