The unfolding shambles around the "anti-smacking referendum" invites a full review of the Citizens Initiated Referenda Act.
OPINION: Even before the voting slips arrive in our letter boxes, we know that, no matter how strong the vote, the politicians are not going to change their minds.
And - arguably - neither should they. The question is poorly framed and manages to be both leading and ambiguous at the same time. This makes the $9 million cost of the exercise troubling - especially when Child, Youth and Family Service centres are being closed and police are cutting the size of their fleet because of budget pressures.
But the problem goes beyond the particular circumstances of this case. This is the fourth referendum to be held under the act. The pattern of the previous three - relating to professional firefighter numbers, whether we should have 99 or 120 MPs, and law and order - is that they typically attract high majorities among those who vote, ranging from 81.46 per cent to 91.75 per cent. Yet none of them has had much real effect upon the political process. The result is increasing cynicism, which is corrosive of rather than encouraging of democratic participation.
Caroline Morris, a lecturer in public law at Victoria University, in an excellent article for the Statute Law Review, notes that the act seems to have fallen into desuetude. It began with a hiss and a roar in 1994 with 18 questions submitted but enthusiasm has waned significantly since then.
David Lange, in the parliamentary debate on the bill, put his finger on a key issue when he said: "[It] is actually a fraud on the community for the government to ask it for its opinion when the government has said that it will not necessarily follow that opinion".
But it would be a very big step to make citizen-initiated referendums binding as they are necessarily blunt instruments and do not permit nuanced or detailed policy-making. Equally, it would be a big step to repeal the act entirely, as it has the potential to be an important expression of our democracy and an opportunity for the public to attempt to influence the political agenda.
There are, however, some smaller changes we could make to restore public confidence in the system, to improve product quality and to better justify the associated financial costs.
First, we need to revisit the sanctity of the question proposed by petitioners. The Clerk of the House, who is responsible for ensuring the question is clear and is capable of a simple "yes" or "no" answer, can consult the legislative advisory committee and the Justice Ministry in the performance of this function.
BUT the clerk can offer technical advice only and clarify the language used. There is no real mandate to offer, let alone insist on, alternative drafts.
The result has too often been poorly designed questions. We need greater legislative prescription around what constitutes an acceptable question. Principles could be written into the act to ensure questions will produce results that can unambiguously inform law reform, are not compound in construction and do not lead a response. The quid pro quo for this greater discipline will be greater credibility.
Second, we need to revisit the clerk's role. It was not a role the office sought and is outside the office's expertise. Why not have a panel of experts to which the clerk can refer questions? Or a retired judge?
Third, we need to require a formal response from the government. At the least, this would be a considered explanation of why the referendum proposition will not be acted on.
New Zealand is the first and only country to have legislated for non-binding citizen-initiated referendums. The legislation is experimental and was acknowledged to be so when passed, with Doug Graham, justice minister at the time, indicating it would be reviewed within five years.
Sixteen years later - and with a National government again in the Beehive - it may be time to conduct that review.
* Andy Nicholls is a partner at Chapman Tripp, specialising in public law and competition issues. The views presented here are his own.
- The Dominion Post