Wednesday 20 August 2014

A Policy A Day: Binding Referenda

In the lead-up to the election, we are going to examine one policy per (working) day. We've selected policies to be as balanced as possible across a range of policy areas and across the political parties. The idea is to explain the background, analyse the policy to investigate the pros and cons, and give a verdict on the policy at the end. Inevitably, some opinion will make its way in and we make no apology for that - after all, we're voters too. Also, I say 'we' because this series will feature some guest posts from other young people, to share their thoughts and ideas as well. A list of all the articles is available hereEnjoy!

Today's policy comes from the Conservative Party. Binding citizens initiated referenda is an interesting policy, because at face value it sounds a lot more democratic, and we all like democracy right? The issue is so important to the Conservatives, that they have stated that it is a bottom line issue for them and they will not enter a coalition with the National Party unless they agree to introduce binding referenda. The specifics of the policy are not on the issues page of their website, but here's the policy from their previous press releases:
- Citizens Initiated Referenda that achieve a two thirds (66.67%) majority will be binding on the government

There are two types of referendum in New Zealand - government-led and citizens-initiated. Their names imply the source of those referenda - this analysis focuses on Citizens Initiated Referenda (CIRs). To trigger a CIR, an individual has to lodge a petition with the Clerk of the House. From this point, they have 12 months to collect signatures from 10% of all registered electors. At the 2011 election, there were 3,070,847 people on the electoral roll, so in practice petitioners need to gather around 340,000 signatures to account for duplicate signatures, signatures that can't be verified, and other errors. This is not a trivial task, and equates to getting almost 1,000 signatures a day.

As it turns out, the majority of petitions lodged do not go ahead, and lapse after 12 months because not enough signatures could be obtained. Topics including battery hens, voluntary euthenasia, banning tobacco, prostitution, and even binding citizens initiated referenda have been proposed over the last 12 years.

Since the introduction of the Citizens Initiated Referenda Act 1993, five CIRs have been held:
- In 1995, on whether the number of professional full-time firefighters should be reduced (88% NO, 27% turnout)
- In 1999, two referenda; one on reducing the size of Parliament from 120 seats to 99 (81.47% YES), and one on justice reform to impose "minimum sentences and hard labour" for serious violent offences (91.78% YES, 84.8% turnout as referenda held in conjunction with the general election)
- In 2009, on whether corporal punishment "as a part of good parental correction" should be a crime (87.4% NO, 56.1% turnout)
- In 2013, on whether the asset sales should be supported (67.3% NO, 45.07% turnout)

As it stands, Citizens Initiated Referenda are not binding on the government, meaning that if the CIR passes, the government can choose whether they do what it tells them to do, or ignore it. In all five cases of CIRs so far, the government has chosen to ignore the result each time.

Analysis of Policy
The fundamental question that we ask when governments ignore Citizens Initiated Referenda (CIRs) is whether the government truly believes that they know better than the electorate. On the one hand, when we elect a government we entrust them with the power to make the decisions that run our country for three years. A CIR is rarely going to reaffirm something the government is already doing; rather the CIRs in recent times have sharply criticised decisions and tried to apply pressure to reverse those decisions. However, successive governments have chosen to ignore these CIRs, presumably because they have more information than available to the electorate or because they know better than us.

As it turns out, in some cases this is true. For example, the anti-smacking referendum came after rigorous debate fuelled by media misinformation and a fundamental misunderstanding of what the law change actually did. Sue Bradford proposed a change that attracted a rare show of cross-party bipartisan support, because ultimately it was a good idea. The law change only removed the criminal defence of "oh I was just disciplining my child" that had been abused far too many times, with some absolutely shocking cases. It was never intended to criminalise the light smacking or other disciplining techniques used by the majority of parents. In this case I would argue that yes, the government did know better than the electorate, and it was better for them to keep the law change and protect at least some children from domestic violence and child abuse.

In other cases it is more questionable. It would be difficult to argue with certainty that the state asset sales over the last term were definitively the right thing to do. It is often held up by proponents of binding CIR as an example of the government clearly ignoring the will of the majority, because 67.3% did not agree with the government selling up to 49% of its holdings in those assets. Except there is one fundamental issue with this "will of the majority" claim - only 45.07% of the electorate responded to that CIR, meaning that actually only 30.33% of the entire electorate did not agree; not a majority. This is a common trend over CIRs, which have had far lower voting rates than general elections. It begs the question - if we're going to have binding referenda, then surely we would need to introduce a minimum quorum as well, something like requiring at least 75% of the electorate to vote before the CIR can be considered by the government (2/3rds of 75% is 50%). Otherwise, the 2/3rds majority for the CIR to be binding isn't necessarily a simple majority of all eligible voters.

This policy also should require changes to how CIRs are set up. First of all, rather than only having the binary YES or NO options (which is currently required by law), a No Vote as an option should be added (at least to influence quorum, if not the final outcome). We also need to make sure that the questions really are yes/no questions, so that "it depends" or "I sit somewhere on a scale between yes and no" are not plausible responses. The questions would also have to be more action oriented; rather than the confusing questions that ask for a general opinion on the issue, the question would have to be more like a Proposition in the US, where a specific policy or piece of legislation is passed into law or repealed directly by the electorate. With the questions we have now, they don't require or force the government to do anything in particular, they're essentially large-scale opinion polls. We also need to look carefully at the biases created by poorly worded questions; for example, there is a strong case that the anti-smacking referendum biased respondents to vote yes because the question implied that smacking was good parenting, and no one wants to call themselves a bad parent. Before we can put our trust in CIRs to provide binding action on our government, we need to ensure that they are adequately doing the job they were intended for.

In some respects, the government tends to be a little more liberal and forward thinking than the rest of the country. The Marriage Equality Bill passed by a much larger margin in Parliament than opinion polling of the electorate suggested. Allowing the population to reverse such decisions by CIR could hamper New Zealand's generally positive record of social progress. The Internet Party has an interesting proposal of "conditional binding referenda" where CIR in certain areas (such as human rights, national security, and international treaties) would not be binding in order to protect minority interests of marginalised groups (interestingly they also think that binding CIRs should have a 75% majority and a 50% quorom). Beyond that, it would also make it harder in general for the government to pursue new issues if they have to deal with more CIRs, and we would continue to rehash the same debates over and over again. There are also legitimate concerns of the electorate using CIRs to simultaneously demand that the government give them more benefits, while demanding tax cuts, creating fiscal chaos as the government is forced to spend more money than it has; California is an oft-used example.

Lastly we need to consider the costs of CIRs, and whether this policy would change the status quo. The most recent referendum (on asset sales) was reported to cost $9 million, and activists (and opposition parties) were criticised for wasting a lot of money on a referendum that was never going to change the government's decision. The Electoral Commission conducts the referenda by mail, which costs less than running election booths across the country, but may cost more than an online system (although implementing such a system would be very costly, and some mail systems would still be required for many voters, duplicating effort and functionality). Would introducing binding referenda make them more common? Perhaps - citizens have more incentive to propose and pursue a CIR if they know that the result will achieve actual change. However, the cost of pursuing a CIR is not cheap for activists and organisers either. At 2011 electoral roll levels, an average of 842 signatures have to be collected every day for a year to reach the 307,085 signatures required to trigger a CIR (it is noted that to account for errors, duplicates, etc. the asset sales referendum collected and presented 393,000 signatures). The 10% threshold is designed to prevent spurious or vexatious petitions, but it is a very high threshold that incurs a significant cost just in getting it off the ground. The threshold should also be reconsidered as part of any binding referenda policy.

Verdict: With the intention of keeping the policy "simple", the Conservative Party has left many details unanswered. For the CIRs to become binding there need to be significant changes to how they are run. There is sufficient doubt in my mind over the balance of power between the government and the electorate, and binding CIRs could create more harm than good. Overall, I am not convinced of the efficacy of this policy.

1 comment:

  1. Well done. You may have read Parkinson's "Direct Democracy" in Miller's "New Zealand Government & Politics" (2006) (4th ed). The chapter makes several good points. Among them, it is asserted that the cost of a CIR campaign means that they will not typically be used by normal citizens, but by established interest groups. There is also the "tyranny of the majority" issue, manifesting in NZ as the concern that Pakeha will use CIR to remove or block initiatives aimed at increasing the position of Maori in society.