The People's Veto Put to Popular Vote: a Call for Binding Citizen's Initiated Referendums in New Zealand

Abstract

In the seventeen years since the introduction of the CIR Act over 45 referendum proposals have been submitted. Only four of these proposals have been successful in triggering a referendum and none have been successful in achieving a significant policy change. In light of the Act’s failure to bring about any meaningful public participation in the democratic process, citizens are calling for reform of the referendum process. Baldock’s petition can be seen as a response to the Government continually ignoring the results of CIR votes. However, it is my argument that an indicative referendum is not the best means to achieve policy change. In this paper, I have established that the failure of the New Zealand democratic experiment, as it has been termed, lies not with the New Zealand public, or the Government, but with the CIR Act itself. The determination of the question process is fundamentally flawed, and leads to referendum questions which do not provide helpful advice to the Government on matters of public opinion. A close analysis of the Baldock petition shows the difficulties of the CIR process. First, the wording of the referendum question is fundamentally flawed. Due to the complexity of the subject matter, a question phrased in a single sentence is unable to capture the spectrum of voters’ opinions or provide meaningful guidance to the Government. While it may show some indication that outcomes of referendums should not be ignored, it does not provide any meaningful direction. Second, in an analysis of the advice given by the Legislation Advisory Committee, I have come to the conclusion that the referendum question is not outside the authority of the Act. The Act clearly provides for indicative referendums on almost any issue so long as the question is clear in its effect and is capable of achieving a “yes” or “no answer. The question is not ultra vires so long as the outcome is only indicative. Finally, the question fails to identify the significant constitutional impacts of binding citizens’ initiated referendums on the New Zealand system of government. The Westminster doctrine on which our constitution lies is at conflict with binding citizens’ initiated referendums. This is because the doctrines of representative democracy and parliamentary sovereignty are so ingrained in our system of government. While this conflict is not devastating for proponents of direct democracy, it is not a decision which should be taken lightly. A significant constitutional overhaul may be necessary before we can consider fully integrating direct democracy initiatives. While this paper has not focused on the merits of Baldock’s proposal, it has considered some of the legal and constitutional impacts of holding an indicative referendum on this issue. Whether this referendum petition is able to appeal to enough voters to meet the threshold requirements, and whether the referendum will have any effect on Government policy remains to be seen. The legislation clearly needs reform, however, any change will be a difficult one. The fact that the Government has been so unwilling in the past to act on the outcome of a referendum, does not bode well for the Baldock petition. It also doesn’t bode well for those calling to repeal the Act altogether. It may be time for the Government to explore a range of ways to remedy the ills of the CIR Act. Proper examination and debate over potential reform is necessary. An indicative referendum on an ambiguous and loaded question, is probably not.