Justice Minister Andrew Little announced in mid-December that the government will hold a binding referendum on the personal use of cannabis in conjunction with the general election, which is due before the end of 2020. The actual question remains uncertain.
Next, the government is considering a referendum on MMP reform. Various questions could be put. One would be to lower the current party vote threshold from five percent to four percent. A related option would be to remove the one-seat coat-tailing provision.
Yet another issue is whether to increase the current three-year parliamentary term to four years, as recently proposed by senior National MP Nick Smith. Any referendum on the parliamentary term would also raise the question of whether the term should be fixed, semi-fixed or flexible.
Meanwhile, New Zealand First has proposed holding a referendum on David Seymour’s End of Life Choice Bill, as a condition for the party’s support for the Bill.
If all these matters were to be put to voters, we could witness at least four referenda. By way of context, over the past 70 years there have been ten government-initiated referenda, half of them on electoral matters, and five non-binding citizen’s initiated referenda.
There are two main arguments for using referenda.
First, there is the so-called ‘democratic case’. From this perspective, referenda are seen as a vital complement and supplement to the institutions of representative democracy, such as parliaments and local councils. They provide a direct mechanism through which the public can express its will. In so doing, it is claimed, referenda foster a more informed, engaged, and active citizenry.
Second, there is a more specific ‘constitutional case’. According to this argument, elected representatives should not decide significant constitutional matters, such as the electoral rules. This is because MPs have a vested interest in the rules of the game. Partisan considerations may thus trump the public interest.
The ‘constitutional case’ for referenda makes sense. Letting MPs decide, for instance, how they are elected or for how long they serve is risky.
But the broader ‘democratic case’ for referenda is much less compelling. Most policy issues are complex and multifaceted. They cannot be reduced to a simple binary question or even a series of binary questions.
Take the matter of voluntary euthanasia. The issue is not merely whether euthanasia should be legalized. Also important is the regulatory framework governing its conduct. What criteria must be satisfied? Who should have a right to prescribe and administer lethal injections? Should close relatives be consulted? And what safeguards should there be? Such issues are complicated and often controversial. They require detailed analysis, a careful weighing of the evidence, and informed deliberation. Representative institutions are designed to facilitate and encourage such processes. Referenda are not.
Further, reducing complex issues to a mere ‘yes’ or ‘no’ is not only simplistic, it can also be highly misleading. Consider the 2016 referendum on Britain’s continued membership of the European Union. It was reasonably clear what ‘remain’ meant, but what did ‘leave’ mean? It is doubtful whether many of the 52 percent who voted to leave the European Union had much idea. And those who promoted leaving had multiple and competing visions, as has become painfully obvious. Predictably, there is now an almighty mess. Repeating banal slogans like ‘Brexit means Brexit’ solves nothing.
Referenda face other objections. The outcome can depend on many factors that have little to do with actual issues at stake. These include how the referendum question is worded, when the vote occurs, the popularity or otherwise of the government, the rules under which the issues are debated, the threshold for success, and the turnout. Moreover, public opinion can be volatile and easily manipulated.
This highlights a further point: the ‘democratic case’ for referenda often assumes that democratic legitimacy can be reduced to securing bare majorities on binary questions. But surely this is not enough. A robust and genuinely deliberative democracy – one which values truth, evidence, fairness, integrity, and informed consent – also requires carefully crafted rules to govern the processes by which debates and voting occur. Such rules must ensure that policy deliberations are open, fair, and honest, with well-designed limits on financing, expenditure, and advertising. Otherwise, people will not have confidence in the result. In short, without proper rules, referenda risk undermining the democratic process.
With a flurry of referenda in prospect next year, we need to ask whether our current rules for such processes are fair and fit for purpose. More fundamentally, we need to question the case for relying on referenda to resolve complex policy issues. Other than for basic constitutional matters, referenda have little place.
Jonathan Boston is Professor of Public Policy in the School of Government.
This article was first published in the Dominion Post.