Rewrite this Putin-esque referenda bill

There are some intriguing and concerning aspects of the proposed new law governing how the referenda accompanying the next election will be run, says Peter Dunne.

At first glance, the Referendums (sic) Framework Bill introduced into Parliament recently is relatively innocuous.

Apparently, it “provides for a single set of legislative provisions to govern the conduct of referendums held alongside the 2020 general election.”

We know already that referenda on the recreational use of cannabis and, quite likely, assisted dying for the terminally ill, and now perhaps even abortion as well are planned to coincide with next year’s election, so arguably it makes good sense to have a standard set of provisions to cover their administration and conduct. Hence the rationale for this Bill.

But, as is this Government’s increasing wont, things are seldom as they seem. Further consideration of the way this Bill has been drafted gives rise to a number of concerns. This Bill is a radical departure from the previous practice that has governed the conduct of referenda (excluding Citizens’ Initiated Referenda which are governed by their own legislation.)

As the authoritative McGee’s “Parliamentary Practice in New Zealand” notes, referenda “have been used in New Zealand for more than a century as a means of making decisions on issues of public policy” and that, whatever the form of the referendum, specific legislation establishing each one has always been required.

Because of its particularity, the referendum process has been used sparingly, usually on major constitutional matters or issues of significant policy. Since 1949, Governments have initiated 11 referenda on issues as diverse as peacetime conscription, the establishment of MMP, the term of Parliament, compulsory superannuation, and most recently, the design of the national flag.

Each of these was established by its own legislation, setting out not only the process for the conduct of the referendum, but also the wording of the question to be considered. Thorough Parliamentary and select committee scrutiny ensured that the question was crafted in the most neutral way possible to allow for the issue at hand to be considered fairly and openly, without any inherent bias. And, the decision eventually reached by the referendum has always been binding on the Government of the day.

However, the Referendums Framework Bill is set to change all that – but, intriguingly, only for referenda conducted alongside the 2020 election.

... if the Cabinet gets a referendum result it does not like, it will be able to ignore it – but only for referenda conducted alongside the next general election – otherwise normal processes continue to apply.

Under this Bill, Parliament will no longer determine the question to be considered, which means there will be no opportunity for any public input through the select committee process. Rather, the referendum question will be set by Order-in-Council, (that means a regulation passed by the Executive Council on the recommendation of the Cabinet, which, in turn, means that the Cabinet will effectively decide  the question to be considered, without any external scrutiny).

And, perhaps worse, there is no longer any commitment that the referendum outcome will be binding.

In other words, if the Cabinet gets a referendum result it does not like, it will be able to ignore it – but only for referenda conducted alongside the next general election – otherwise normal processes continue to apply.

The situation that sets up is almost Putin-esque in its respect for the exercise of the direct democracy that the Government-initiated referendum process has always been, ever since the first such referendum was held in 1911.

In its defence, the Government will say will that the public scrutiny aspect is not lost – that Parliament’s Regulations Review select committee will be able to look at the conduct of any such referenda held under the new legislation. But that review will be after the event, so will not provide any opportunity to review the form of the referendum question, for example.

All of which begs the question of why the need for this change?

Yes, there is a logic to having “a single set of legislative provisions to govern the conduct of referendums held alongside the 2020 general election”, but that does not explain or justify why the power to determine the question has been taken away from Parliament, or why the outcomes will no longer be binding.

On the reasonable assumption the Government knows what referenda it intends to hold at next year’s election, it would have been a relatively simple exercise to have included draft wording  and a commitment to implementing the outcome in this omnibus Bill, and to give the public and a select committee the opportunity to consider and modify these as necessary, prior its becoming law.

A likely explanation of why the established process is being upended is tension within the Government parties about the cannabis referendum.

Holding a referendum on recreational cannabis was a key part of the Labour/Greens confidence and supply agreement.

But it has become clear that while the Greens want to use the referendum to clear the way to reform existing recreational cannabis use restrictions, and would have strongly preferred the referendum to include a specific proposition to that effect, Labour (and almost certainly the grim, dark shadow over the shoulder that rules it) want a far more general approach, with room to implement or not implement the outcome as the case may be. (Remember, the Prime Minister musing some months ago that the referendum could be indicative only.)

Given these differences, there was a real risk that a public process to determine the referendum question on what most people assumed would be a binding issue, could have produced outcomes that were most unwelcome, or potentially awkward alongside the Government parties’ general election campaigns.

Therefore, the best way of overcoming these potential difficulties would be to remove that aspect altogether by transferring the power to determine the question from Parliament and the public to the Cabinet, for this election period only. That way, the question could be drafted to best suit the wishes of the Cabinet (where the Greens do not sit), and ensure the process could be best managed so at least not to inconvenience, or at worst assist, the Government’s wider election plans, rather than follow best public policy design practice.

The fact that this amendment applies only to referenda carried out in conjunction with the 2020 general election highlights how irregular the approach now proposed is.

Whatever the reasons, the most objectionable piece of the Bill is the power given to the Cabinet alone to decide the referenda questions.

Leaving aside the 2020 narrow political considerations, the precedent it establishes for future Governments to enact similar provisions to establish politically biased referenda without effective Parliamentary scrutiny as to their content is grossly offensive to the direct democracy process, and much more reminiscent of the plebiscite approach adopted in countries where democracy in any form is but the thinnest of veneers.

Incredibly, during the Bill's First Reading debate, New Zealand First Ministers almost gleefully argued it should be the Government's, not Parliament's, right to set referendum questions, with one Minister going so far as to suggest Parliament could not be trusted on such matters!

Government initiated referenda should be free and fair in their conduct, with the impacts of voters’ views being more than just ticks in a column to suit what the Government wants.

In the interests of maintaining our long-established tradition and practice, and ensuring that direct democracy still counts for something, the Government needs to back away fast from its fundamentally anti-democratic plans, and treat the referendum process seriously and not just a malleable extension of its coalition and confidence and supply agreements.

It should immediately rewrite (not to mention restyle the grammar of) the Referendums Framework Bill to ensure that the power to determine the referendum question remains with Parliament. Otherwise the referenda proposed for next year – no matter how worthy their subjects or their outcomes – risk being dismissed as shams.

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