Managed Democracy: Letting The People Decide, But Only When They Can Be Relied Upon To Give the Right Answer.

Uh-uh! Not So Fast, Citizens! The power to initiate systemic change remains where it has always been in New Zealand’s representative democracy – in Parliament. To order a binding referendum, the House of Representatives must first to be persuaded that, on the question proposed, sharing its decision-making power with the people is a good idea. Not an easy task.

WHEN DID HOLDING REFERENDA become a bad thing? What transformed the option of asking citizens to decide an issue collectively into a sin against democracy on a par with the Reichstag Fire? In attempting to answer that question, it is important to establish that referenda have been a common feature of New Zealand political life for more than a century.

Voters participated in what was called the “National Licencing Poll” – a referendum – at every general election held between 1919 and 1989. The question put to them was whether New Zealand should embrace “Prohibition”, “Continuance”, or the “State Purchase and Control” of alcohol. More than once, astonishingly, “Prohibition” came within a percentage point of winning!

In August 1949, 77 percent of New Zealanders voted in favour of a Labour Government sponsored referendum calling for compulsory military training in peacetime.

Twice since 1967 New Zealanders have been given a choice between a three-year and a four-year parliamentary term. (Spoiler Alert: Both times they opted to stick with a three-year term.)

In 2015 and 2016, New Zealanders voted in two referenda to decide whether or not the nation’s flag should be replaced.

In 2020, Kiwis voted to legalise euthanasia, and reaffirm Cannabis prohibition, in two separate and binding referenda.

Most significantly, however, New Zealand’s electoral system was changed profoundly, and remained so, on the strength of not one, not two, but three referenda.

How, then, has this tried and tested means of testing the general will been transformed into something so dreadful that 440 Christian clerics recently felt compelled to publish an open letter to the nation’s legislators urging them to reject out of hand a bill defining the principles of te Tiriti o Waitangi, and providing for these legislatively (re)defined principles to be accepted or rejected by referendum at the next general election?

The answer to this question may be found in the unfortunate history of Citizens Initiated Referenda (CIR). Much like the popular campaign for a shift towards proportional representation, the demand for citizens initiated referenda grew out of the public’s immense dissatisfaction with a political system that seemed impervious to the popular will.

In spite of all the promises made to voters in the run-up to general elections, the neoliberal economic and social order erected by Labour in the late-1980s, and reinforced by National in the early-1990s, remained unchallengeable.

The First-Past-the-Post electoral system, by delivering an absolute majority of the seats in the House of Representatives to single parties receiving less (and, not infrequently, considerably less) than 51 percent of the popular vote, allowed doctrinaire governments to defy public opinion. Under the prevailing two-party system, and with Labour and National equally committed to preserving the neoliberal order, root-and-branch change remained the preserve of parliamentarians – not citizens.

To the chagrin of those who had successfully campaigned for proportional representation, the new electoral system – “MMP” – hardly improved matters. While the New Zealand Parliament became more representative of New Zealand’s increasingly diverse electorate, the electoral duopoly committed to the survival of neoliberalism remained strong enough to deny smaller parties the critical policy concessions they and their supporters were anticipating under the new MMP system.

The public push for CIRs was intended to supply the “braces” to proportional representation’s “belt”. Any government foolhardy enough to dig in its toes over dismantling neoliberalism could be forced to do so, albeit in piecemeal fashion, by having specific policy changes mandated by referendum.

With the decisive referendum on MMP looming in 1993, the National Government appeased the CIR campaigners by passing legislation allowing for 10 percent of electors to initiate a referendum. There was, however, a catch. Any referendum thus initiated would not be binding.

Huh? Wasn’t that a pretty massive spanner to throw in the works of plebiscitary democracy? With the benefit of hindsight, the answer seems blindingly obvious. At the time, however, people were persuaded that it might be dangerous to bind the hands of government quite so tightly. More importantly, they bought the argument that no government would be foolhardy enough to ignore the moral force of a successful referendum.

Yeah, right.

Without the assurance of the CIR’s result being binding, a worryingly large percentage of New Zealand’s already cynical electorate consistently declined to participate in the process. But, without a convincing turn-out, the politicians argued, no affirmative result could be taken seriously. Even 100 percent support for a proposition loses its lustre when three-quarters of the population cries-off expressing an opinion.

Unsurprisingly, the public’s enthusiasm for CIRs soon waned.

The initiative for change thus remains where it has always been in New Zealand’s representative democracy – with Parliament. To order a binding referendum, the House of Representatives must first to be persuaded that, on the question proposed, sharing its decision-making power with the people is a good idea.

Not an easy task.

Getting Parliament to devolve its power is made even more difficult if the question to be decided runs counter to the accepted wisdom of the ruling elites and their parliamentary proxies. In the case of questions requiring the jettisoning of neoliberal economics, or messing around with the accepted understanding of te Tiriti o Waitangi, those MPs attempting to give the people the final say should expect to be opposed by an overwhelming majority of their colleagues.

Which is precisely what Act’s MPs have discovered in relation to their leader, David Seymour’s, Treaty Principles Bill.

Every other party in Parliament opposes vociferously the very thought of defining the principles of te Tiriti by referendum. The issues, they say, are far too complex to be resolved by such a crude political mechanism. Treaty matters are best left to the sober deliberations of New Zealand’s most senior judges, the Waitangi Tribunal, and experienced public servants. They must not, under any conceivable circumstances, be left to the tender mercies of the ordinary New Zealander in the street.

Were such a thing to happen, the parties argue, New Zealand’s social cohesion would likely be sorely tested. If David Seymour’s definitions of the Treaty’s principles are ratified by referendum, they warn, there could be violence.

Backing these alarming claims is the Ministry of Justice’s Regulatory Impact Statement which further cautions the National-Act-NZ First Coalition Government that: “[P]utting decision-making on Treaty matters to the wider public through a referendum brings a significant risk that the will of a non-Māori majority will impose on the minority partners (who are also most likely to be affected by the policy).”

That this is precisely what has been proposed in every binding referendum ever conducted in New Zealand seems to have escaped the Ministry of Justice.

The will of the alcohol consuming majority was triennially imposed upon the teetotalling minority. The will of the communist-fearing majority in 1949 over-ruled those who opposed turning teenagers into cannon-fodder.

It’s the way democracy works: by ensuring that politicians are only able to exercise power legitimately “with the consent of the governed”; because the only state of affairs worse than the tyranny of a ballot-casting majority, is the tyranny of a violence-threatening minority.

This essay was originally posted on The Democracy Project substack page on Friday, 13 September 2024.