New Zealand's democratic deficit: What role for direct democracy?

by Steve Baron B.A. (Political Science & Economics)

www.betterdemocracy.co.nz 1

Abstract Even though New Zealand may be considered a democratic nation compared to international standards, this article argues that a significant democratic deficit exists in the New Zealand political system. It will define democratic deficit while examining the political power of the New Zealand Prime Minister and Cabinet. Five critical systemic concerns will be highlighted that create such a democratic deficit. Direct democracy will also be discussed (with particular reference to its use in Switzerland and the USA) as a much needed tool to give New Zealanders more 'checks and balances' on political decision-making and how direct democracy can balance the democratic deficit. We will examine the direct democracy tools of citizens' initiatives, referendums and recalls, along with highlighting the need for improvements to the Citizens' Initiated Referenda Act 1993. Finally the issues which direct democracy can successfully address will be outlined, together with some responses to the major objections often voiced when direct democracy is debated as a political option.

Keywords: democracy, democratic deficit, direct democracy, referendum, New Zealand government.

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New Zealand can be referred to as a liberal representative democracy. This means it has an accepted political framework with regular elections as well as protection of individual rights, and freedom of expression and association.1 As a representative democracy the government’s aim is also to secure individual liberty but at the same time protect minorities from the risk of tyranny from the majority. New Zealand has established its own brand of political system, even though it is largely based on the British Westminster system. New Zealand certainly has free and fair elections every three years and individual rights are well protected under the New Zealand Bill of Rights Act 1990, although this Act is not entrenched. The whole political process is all relatively transparent with little corruption according to the Corruption Perceptions Index. 2 Citizens have easy access to their local MPs, and they can present petitions to parliament and make submissions to government select committees and other authorities. There is strong competition at elections between numerous political parties, although this is dominated by the National and Labour parties—all signs of a strong, inclusive society. New Zealand democracy also operates under what is termed parliamentary sovereignty. British constitutional theorist, Prof. Alfred Dicey, has stated that parliamentary sovereignty is, 'the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament'.3 From a New Zealand perspective, New Zealand's leading exponent of constitutional and administrative law, Prof. Philip Joseph states that 'Parliament's word can be neither judicially invalidated nor controlled by earlier enactment'. 4 However, the concept of 1 2 3 4
Rod Hague and Martin Harrop, Comparative Government and Politics (New York, USA: Palgrave Macmillan, 2007), p. 8. Transparency International: Corruption Perceptions Index, 2010, www.transparency.org/policy_research/surveys_indices/cpi/2010/results Albert Dicey, Introduction to the Study of the Law of the Constitution (London: Liberty Classics, 1915/1982), p. 3. Philip Joseph, Constitutional and Administrative Law in New Zealand (Wellington, New Zealand: Brookers, 2002), p. 461.

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parliamentary sovereignty is rather misleading. What New Zealand has, in effect, is Cabinet sovereignty or Cabinet government, because the Prime Minister and his or her Cabinet are so very dominant. As pointed out by Walter Bagehot, 5 the 'efficient secret' of the British Constitution —which New Zealand politics is based on (Westminster system)—is Cabinet Government. This gives the Executive and Cabinet overwhelming powers, 6 'None the less, despite its authority, Parliament lacks power. Since the nineteenth century it has been dominated by the governing party, which itself is dominated by Cabinet’. 7 The domination of a governing party is a major concern because party membership in New Zealand has fallen 20% from 1960 to 2000.8 This means the links between party members and governments are weak at best, due to such a small membership representing a small proportion of society.9 This also indicates that the policies of political parties are being formed by a smaller group of people and are more likely to represent those of an elite few who dominate power within the political party, rather than those of a more broader base. An additional concern about New Zealand democracy is falling voter turnout. In New Zealand voting has dropped from 93.5% in 1946 to 79.5% in 2008. 10 Given the preceding facts and given the power that the Prime Minister and Cabinet wields, is the government politically representative of New Zealand citizens? In a Radio bFM interview Prime Minister Helen Clarke was asked about a genetic engineering (GE) march that attracted 20,000 citizens. Her response was, 'I don't care if every New Zealander marches, we campaigned for GE in the

5 6 7 8 9 10

Walter Bagehot, as cited in Joseph, Constitutional and Administrative Law in New Zealand.
Elizabeth McLeay, The Cabinet and Political Power (Auckland: Oxford University Press, 1995), p. 187. McLeay, The Cabinet and Political Power, p. 187.

Hague and Harrop, Comparative Government and Politics. Paul Whiteley, 'Is the Party Over? The Decline of Party Activism and Membership Across the Democratic World', Party Politics, Vol. 17, No. 1 (March 2009), pp. 21-44. Elections New Zealand, 'General elections 1853-2005 - Dates & Turnout', n.d., www.elections.org.nz/elections/resultsdata/elections-dates-turnout.html

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election and won, end of story.' 11 This in itself highlights the dictatorial nature of New Zealand politics and the problem with political parties and bundled policies. Because a citizen votes for a particular political party in an election, this does not mean that he or she agrees with everything that political party stands for. When a government, or a coalition government is elected, a bundled package of policies results and citizens are unable to pick and choose which they agree with. As societies grow and develop, citizens are becoming more educated than they ever were before. It is a logical step, then, that they would want more say in issues that may affect their lives and to unbundle these policy packages. This view highlights a perceived need for more 'checks and balances' (i.e., accountability) as well as more relevant tools and methods for citizens to have input and influence on the democratic process. We will look at potential candidates for this later when discussing the future of direct democracy. Democratic deficit. Here we examine the definitions of democracy, democratic deficits and what involvement citizens might be expected to want to have in the political process. Democracy is a much-used word that few give much serious thought to and can mean many things to different people. The word democracy derives from ancient Greece and means 'rule by the people'.12 Many have come to accept that whenever this word is used it must be a good thing. However when democracy means different things to different people, it may end up meaning nothing at all. The general public often have a lack of in-depth understanding when it comes to knowing what democracy is and how it can be improved. 13 While most may be familiar with the above description of democracy, many would be less familiar with the term democratic deficit. British political scientist David Marquand14 first used the term when discussing the politics of the European Union. Since then many people have written 11 12 13 14
Steve Baron and Jonathan Eisen, People Power: How to Make the Government Listen to You for a Change (Auckland, New Zealand: The Full Court Press, 2004), p. 1. David Held, Models of Democracy (Cambridge, England: Polity, 2006), p. 1. Andrew Heywood, Politics (London: Palgrave Macmillian, 2007). David Marquand, Parliament for Europe (London, England: Jonathan Cape, 1979).

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about democratic deficits, even though the term has not been clearly defined. Sanford Levinson15 has attempted to define what it is: 'A democratic deficit occurs when ostensibly democratic organizations or institutions in fact fall short of fulfilling what are believed to be the principles of democracy.' The difficulty here is deciding what aspects of government to measure both terms against, and exactly how much influence citizens should have in the process. The most common way in which society influences government is through elections, since elections are a way for society to hold governments accountable for their actions and policies. Free and fair elections between competitive parties on a regular basis give democracies and governments credibility.16 The most popular definition of democracy equates it with regular elections, fairly conducted and honestly counted. 17 It has also been argued that when more people participate in a democracy this can only lead to a better and stronger democracy. 18 This is obviously an argument for citizens to have more input into the policy process. Democracy needs to be a give-and-take between representatives and the electorate—any opportunity for citizens to be incorporated into the political decision making process should be welcomed. The alternative to this stance is that we elect representatives to make the tough calls and to exercise leadership. This is the basis of representative democracy, although political philosophers such as Rousseau have made the point that, 'the moment a people gives itself representatives, it is no longer free. It ceases to exist'. 19 Should New Zealanders be concerned? Five major systemic concerns We now examine five major concerns regarding New Zealand's political system and discuss 15 16 17 18 19
Sanford Levinson, 'How the United States Constitution Contributes to the Democratic Deficit in America', Drake Law Review, 55, pp. 859-885 (2007). Hague and Harrop, Comparative Government and Politics. Philippe Schmitter and Terry Lynn Karl, 'What Democracy is... and is Not', Journal of Democracy, 2, pp. 75-88 (1991). .Benjamin Barber, Strong democracy: Participatory Politics for a New Age', (Berkeley, California, USA: University of California Press, 1984). Jean-Jacques Rousseau, as cited in Hague and Harrop, Comparative Government and Politics.

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how they contribute to a democratic deficit. 1. No codified constitution. The 20th century has seen an explosion in the introduction of constitutions around the world.20 As defined by Sir Geoffrey Palmer, 'A constitution is the system or body of fundamental principles under which a nation is constituted or governed; it sets up the framework for government itself'.21 A constitution is also a powerful way for society to influence government as it puts a check and balance on government powers, promotes accountability, and protects the rights of minorities and all citizens. A constitution also critically restricts what a government is able to do in terms of passing laws. The most famous and oldest constitution is that of the United States of America which was founded in 1787. There are two types of constitutions, a codified constitution which is a single document, and an uncodified constitution which may exist across a number of documents. New Zealand's system is an uncodified system. Further, constitutions may be flexible or rigid in terms of their potential for challenge and modification. Britain and New Zealand are examples of flexible constitutions and are relatively easily changed, most often by a simple majority in parliament. Parts of the New Zealand constitution such as Section 268 of the Electoral Act 1993 are entrenched and require a 75% majority in parliament or the majority in a referendum to be changed. However, this is rather misleading because a simple majority in parliament can remove the entrenchment, thus making it possible for a simple majority to then change it. For example, the New Zealand Bill of Rights Act 1990 can be changed with a simple majority in parliament. These are important considerations when discussing any democratic deficit. If a government can change the rules of the game with a simple majority, it leaves the political system open to abuse and at the whim of the controlling party in government. 20 21
Peter Quint, 'What is a Twentieth-Century Constitution?', Maryland Law Review, 67 (2008), pp. 238-57. Geoffrey Palmer and Matthew Palmer, Bridled Power: New Zealand Government Under MMP (Wellington, New Zealand: Oxford University Press, 1997), p. 2.

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2. Legislative Council (Upper House). The goal of a legislative council is to represent different interests from those of the House of Representatives (Lower House/General Assembly). The Legislative Council's role is to revise and scrutinise legislation coming from the House of Representatives and acts as a check and balance, perhaps even ensuring the protection against the 'tyranny of the majority'. It also has the ability to delay or block controversial legislation. Legislative Councils are often more independent from the General Assembly if they are directly elected. One major problem with a second chamber is that of gridlock and ineffectiveness, as when one chamber is more powerful than the other or almost identical to each other. It could also be argued that legislative councils lead to more consensus government.22 However, in New Zealand, the Legislative Council was in operation until 1951 when it ceased to exist. Members were nominated by the government of the day for 7-year terms with no limit to the number of members. During the first Labour government (1935-1949) the Legislative Council had become markedly supportive of Labour. When the National Party came to power in 1949 it implemented an election policy to have it removed. There was little opposition to this because the Prime Minister of the day had promised to search for a better type of Upper House.23 This never eventuated because of a perceived ineffectiveness of the Upper House and over time other parliamentary tools were initiated to constrain the abuse of power (at least to some extent). This has, however, caused a concentration of power in the Cabinet where legislation is decided upon almost at will, although the introduction of the Mixed Member Proportional (MMP) voting system and subsequent coalition governments since 1996 have slightly reduced this concentration of power. 3. Free votes (conscience votes). Originally there were no political parties in the New 22 23
Meg Russell, 'What Are Second Chambers For?', Parliamentary Affairs, Vol. 54 (2001), pp. 442-58. George Wood, 'New Zealand's Single Chamber Parliament: An Argument for an Impotent Upper House?', Parliamentary Affairs, Vol. 36, No. 1 (1983), pp. 334-347.

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Zealand parliament. Politicians were not obligated to vote in any particular manner, so therefore every vote in parliament at the time could be considered a free vote. The first political party in New Zealand, the New Zealand Liberal Party, governed from 1891 until 1912 and party MPs were expected to vote along party lines. The first officially recorded free vote in the New Zealand parliament was in 1893. Free votes came about because of new drinking laws being proposed towards the end of the 19 th century, and were a safety valve for parties because some party members felt so strongly about certain issues. 24 Initially, the use of free votes in parliament was slow and only two free votes had been held by 1900 and just nine by the end of the 1940s. Up until the 1940s there had been on average, 1.1 free votes in parliament each year. Since then, there has been an average of 2.1 free votes each year. Free votes have been invited on numerous issues over the years, including homosexuality, prostitution, gambling, abortion, euthanasia, the regulation of social issues such as pornography, Sunday trading, divorce and matrimonial property, adoption, the sale of alcohol, electoral reform, the compulsory wearing of seat belts, mandating the fencing of swimming pools, smoking in public places, and compulsory military training. Of these, 42% of all free votes have been related to the control and provision of alcohol, and 19% have been held on issues related to gambling. 25 Generally speaking, the New Zealand public has accepted the use of free votes in parliament as a normal part of parliamentary business, especially when free votes are on moral or ethical issues that are unlikely to be party issues at the core of government. Lindsey raises an important issue when he refers to 'constituents': Conscience voting can be considered a politically useful mechanism for dealing 24 25
David Lindsey, 'Conscience Voting' in Raymond Miller (ed.), New Zealand Government & Politics (Auckland, New Zealand: Oxford University Press, 2006), pp. 186-196. David Lindsey, 'A Brief History of Conscience Voting in New Zealand', 2007, Australasian Study Parliament Group Conference, www.parliament.wa.gov.au/web/webpages.nsf/WebFiles/ASPG+2007+Lindsey/$FILE/Lindsey.pdf

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with socially contentious issues. The unpredictability of the outcome provides an incentive, if not compulsion, for parliamentarians to consider more carefully their own views, those of their constituents and the implications of their vote.26 What is important here is to consider whether the morals and principles of an MP are more important than the morals and principles of the voter in the representatives electorate. Back in 2004 at an investment exposition he was attending, I spoke at some length with the then future Prime Minister John Key, specifically in regard to free votes and direct democracy. His comments were that free votes put MPs in a difficult position, or as he put it, 'between a rock and a hard place because whatever we do is wrong in some person's eyes'. So how do politicians make decisions when it comes to free votes? From the politicians I have personally spoken to, there seem to be many options. Some vote based totally on their own conscience/morals/principals regardless of what others around them, including their electorate, want. Some try to gauge the public feeling, while others like Maurice Williamson, MP for Pakuranga (Auckland) say they actually poll their electorate first. For those who do wish to gauge the feeling of their electorate (if they are constituent MPs), and do not take any scientific poll, it becomes extremely difficult to make a decision because they may be influenced by a small number of people, not necessarily representative of the general public. It could be argued that it would be more democratic if citizens were asked to decide such conscience issues in a referendum, rather than leaving the decision to individual MPs in a free vote, if parliament is seeking a more consensus-based society. After all, are the morals and principles of an MP any more valuable or important than those of the public? This writer does not think so. In fact, given the undesirable record of MPs over a very long period of time, it could be easily argued that their morals and principles are inferior to those of the general public and therefore decisions made via free votes in parliament should be transferred to voters in a referendum. 26
Lindsey, ' A Brief History of Conscience Voting in New Zealand', emphasis added.

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4. International laws and free trade agreements. International laws are growing in stature and often influence governments who sign up to such laws and can take precedence over domestic laws: 'In a globalised world international treaties and rule-making bodies increasingly shape domestic law and constrain domestic legislation and administration.'. 27 Once the government signs New Zealand up to such treaties and laws, it is then obligated to adhere to any subsequent changes that are made in these agreements. This consequently places significant power in the hands of international authorities such as the United Nations, and citizens are effectively powerless to stop these decisions. Free trade agreements such as the Trans-Pacific Partnership Agreement (TPPA) are also a concern to some New Zealanders. TPPWatch28 is a group of concerned unions, groups and individuals who have organised themselves to oppose this free trade agreement. This group has taken out advertisements in major newspapers highlighting their concerns and arguing the TPPA is a threat to New Zealand's democracy. In this respect, international laws and free trade agreements add to the democratic deficit. 5. Urgency procedure. 'Urgency' is a process used in parliament to extend the sitting time of the House to enable it to complete certain business. A motion for urgency can only be moved by a Minister of the government: 'Urgency as a business tool has been available since 1903 and has become a key means of progressing Government business since 1929'. 29 There are two main types of urgency. The first is normal urgency, which is when the sitting hours of parliament are extended and question time is cancelled. It is then possible for a Bill to be passed through all three stages without select committee or public input. The second is extraordinary urgency which is quite rare and means the sitting time of parliament can be 27 28 29
Colin James, 'The Evolving Role of Parliament', Emerging Issues Project, 2007, http://ips.ac.nz/events/completed-activities/Parliament %20Series%20Summary%2007Oct18.pdf, p. 3.

TPPWatch. http://tppwatch.org/, 2010. John Martin, The House: New Zealand’s House of Representatives 1854–2004 (Palmerston North, New Zealand: Dunmore Press, 2004), p. 193.

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extended even further, from midnight to 8am. 30 The New Zealand Herald31 published an editorial entitled 'Bulldozed rush of legislation makes mockery of democracy'. The editorial raised fears that a huge amount of non-urgent legislation was being pushed through parliament under urgency without following the democratic process, saying, 'It has adopted a bulldozing approach that is disturbingly at odds with democratic Government'. Pushing this legislation through meant there was no time for public debate or input. An example of this was in 2010 when Environment Minister Nick Smith and Local Government Minister Rodney Hide took the extraordinary step of pushing Environment Canterbury’s Temporary Commissioners and Improved Water Management Act through parliament after a review of Environment Canterbury by former National Party deputy prime minister Wyatt Creech. This new Act replaced publicly elected councillors with seven government appointed commissioners and put off further elections until at least 2013. It also took away the right of Canterbury residents to appeal to the Environment Court. An outspoken critic of this Act was New Zealand's leading exponent of constitutional and administrative law, Canterbury University law Prof. Philip Joseph. He is also the author of Constitutional and Administrative Law in New Zealand. Prof. Joseph32 made a number of forceful statements to the press, such as, '[this Act] breaches several principles of law', is 'constitutionally repugnant', '[contains] elements of subterfuge', and is a 'constitutional affront'. Continuing, he stated, 'What I'm concerned about is the idea of proper process, and this was a departure', and emphasised: 'This didn't go through any select committee consideration, no submissions and no consultation. 30 31 32
New Zealand Parliament, 'Urgency in the House', n.d., www.parliament.nz/enNZ/Features/8/f/a/00NZPHomeNews 170220091-What-is-urgency.htm New Zealand Herald, 'Bulldozed Rush of Legislation Makes Mockery of Democracy', Editorial, 14 December 2008. www.nzherald.co.nz/nz/news/article.cfm?cid=1&objectid=10547924 Paul Gorman, 'Shunning of Due Process Repugnant, Says Law Academic', The Press, 19 May 2010. www.stuff.co.nz/national/politics/3712291/Shunning-of-due-process-repugnant

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Why should urgency be taken on a matter such as this? The act was passed in haste, represented a disproportionate response to the issues that prompted the Government intervention'. Prof. Joseph was not the only outspoken critic. Jonathan Temm, President of the New Zealand Law Society, for the third time since the government of the day (National) was elected, took the rare step of criticising the government for an emerging trend in legislation being passed under urgency, which he argued was usurping the role of parliament and threatening the rule of law in New Zealand.33 Temm had also previously raised concerns, like Prof. Joseph, regarding Environment Canterbury’s Temporary Commissioners and Improved Water Management Act. He then criticised the government over the Canterbury Earthquake Response and Recovery Bill.34 In an interview regarding the new Rugby World Cup 2011 legislation he said it gave the Minister almost royal powers over the event. To him this power was over and above the authorities already existing. The passing of absolute power to individual ministers is becoming a worrying trend. This particular Bill also prevented the judiciary from reviewing any decisions that were made by the Minister and was introduced and passed all in the same day which is not the process in most liberal democracies. Mr Temm said, 'History shows unconstrained power is abused' and was concerned about the process being adopted. He argued that it was a subjective decision to remove democratically elected councillors, and this is what happened in the Environment Canterbury case. Attorney General Chris Findlayson responded in the same interview denying any such trend and that the Law Society's President's comments were simply 33
Kathryn Ryan, 'Law Society Criticises Government Lawmaking' [Audio podcast]. From Nine To Noon, 11 November 2010, www.radionz.co.nz/audio/search?utf8=%E2%9C %93&q=Law+Society+criticises+government+lawmaking

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Jonathan Temm, 'Law Society Comments on Canterbury Earthquake Response and Recovery Act', 2010, New Zealand Law Society, www.lawsociety.org.nz/home/for_the_public/for_the_media/latest_news/news/september/law_soci ety_comments_on_canterbury_earthquake_response_and_recovery_act

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hyperbolic and legal nitpicking because these new laws were only a stop-gap measure. He assured listeners that the legislation would be reviewed in due course. He also argued that removing the right of Judicial review was necessary as it could completely delay necessary work after an earthquake.35 Regardless of which side of the above debate is supported, the fact that both the Law Society and an eminent professor have come out criticising the government should be of considerable concern to all New Zealanders and bolsters the argument herein–that a serious democratic deficit exists in this country, which needs addressing. Direct democracy as a solution to the democratic deficit From the preceding five major concerns regarding New Zealand's political system, the conclusion might be drawn that there are significant reasons for concern, a lack of checks and balances, viz. accountability, and that these add to the democratic deficit. This suggests that there is a pressing need for a political tool that would introduce more opportunity for explicit checks and balances to address the democratic deficit. We will now discuss direct democracy and the role it may play in addressing the preceding problems. Direct democracy is a concept that a growing number of citizens and states around the world are exploring and embracing. There are190 million people in Switzerland, Italy, Liechtenstein and 24 States in the USA who now embrace the referendum system with 70% of the USA population now living in a state that gives them the right to vote on initiatives and referendums.36 To many people, direct democracy can mean different things. Some picture the 35 36
Ryan, 'Law Society Criticises Government Lawmaking'. David Butler and Austin Ranney, Referendums Around the World: The Growing Use of Direct Democracy (Washington, USA: The AEI Press, 1994); John Matsusaka, For the Many or the Few: The Initiative Process, Public Policy, and American Democracy (Chicago, USA: University of Chicago Press, 2004); Geoffrey Walker, Initiative and Referendum: The People's Law (St Leonards, NSW, Australia: The Centre for Independent Studies Ltd., 1987).

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classical/pre-modern (Athens) style of direct democracy where citizens meet in the town square and decide what is going to happen. Others see it as an opportunity to rid the world of devious self-serving politicians, where we can all sit at home and make all necessary political decisions via our laptops. Whatever it means to you, direct democracy has certainly become a much discussed topic over the last twenty or so years even though it has had numerous critics. Direct democracy would appear to offer citizens more control over controversial and polarizing issues that directly affect their lives. That is not to say that direct democracy should replace representative democracy, only that it would be an adjunct to what New Zealand has at present. One definition has it as, 'A form of state in which the sovereign power is held by the People, i.e., national sovereignty belongs directly to the People. The People also exercise their sovereignty directly, for example by means of popular legislation.'. 37 My own definition would be: the right of citizens to initiate referendums on any issue, to veto legislation, and for these decisions to be binding on parliament. There are a number of parts to direct democracy: elections, citizens' initiatives, referendums, recalls, and plebiscites. A lot of misunderstanding and confusion could be avoided if these issues were all clearly distinguished from one another, along with their procedures. Of course, there are also many forms of election systems but these will not be discussed here. The citizens’ initiative allows one or more citizens to put their own proposal on the political agenda once the required number of signatures has been collected to trigger the citizens’ initiative. It is interesting to note here that only about 10% of citizens' initiatives actually pass in Switzerland, the birthplace of direct democracy. An obligatory referendum is triggered automatically by law, usually by a constitution which requires that certain issues must be put before the voters for approval or rejection. 37
Bruno Kaufmann, Rolf Büchi and Nadja Braun, Guidebook to Direct Democracy in Switzerland and Beyond (Bern, Switzerland: The Initiative & Referendum Institute Europe, 2008), p. 233.

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A facultative referendum (sometimes called the optional referendum in Switzerland or veto referendum in other countries) is when new laws, or changes to laws which have been passed by parliament, can be subject to a referendum if the required number of citizens demand it. The new law becomes effective if the majority of the votes were in favour of it. It is worth noting that of the more than 2,200 laws passed by the Swiss parliament since 1874, only 7% have been subjected to a facultative referendum. A recall can be launched to remove corrupt officials, or to remove elected representatives whose policies and performance are found wanting. A high profile example of this was when Governor Grey of California was replaced in a recall by actor Arnold Schwarzenegger. The recall operates in a similar fashion to the citizens' initiative where citizens collect the required amount of signatures, and once this has been achieved, a referendum is held to decide if a certain elected official will retain their position. The recall has two components, a 'yes' or 'no' vote for recall, and the names of the replacement candidates. The recall measure is successful if it passes by a simple majority. In that case, the replacement candidate with the largest vote wins the office. If the recall measure fails, the replacement candidate votes are ignored. Plebiscites are different and are controlled by authorities; they are not referendums or initiatives and therefore arguably are not part of direct democracy. A plebiscite is a public consultation controlled from above by those in power (e.g., President, Prime Minister, Parliament) which decide when and on what subject the people will be asked to vote or give their opinion. They are a way for those in power to manipulate citizens and have power over them and are used to give some form of legitimacy for decisions that those in power have already taken. In Switzerland, for example, it is quite different from Nazi Germany during 19331945 where there were three manipulated plebiscites. In Switzerland, direct democracy means that a referendum process takes place either because a group of voters demands it, or because it is stipulated in the constitution but the government cannot call the referendum so therefore 16

Switzerland does not have plebiscites and direct democracy in Switzerland cannot be controlled by the government.38 Direct democracy in New Zealand? Direct democracy in New Zealand continues to be a work in progress. In 1893 New Zealand debated having a constitutional framework similar to Switzerland. Although never enacted, a Referendum Bill was introduced to parliament. However, the Bill only provided for non-binding, government-controlled referendums—these would only have been plebiscites. This Bill was also re-introduced again in 1918 but failed.39 A statutory provision for constitutional referendums is also provided for under the Electoral Act 1993, section 268. This statutory provision is singularly entrenched which means that it can only be amended or repealed if passed by a 75% majority of all MPs, or by a majority in a referendum.40 Then, in 1984, Social Credit MP Garry Knapp introduced the Popular Initiatives Bill which would have enabled 100,000 voters to trigger a non-binding referendum. The Bill was deferred pending a Royal Commission on the Electoral System, which was established by the Labour Government in 1985.41 The Royal Commission on the Electoral System42 did not support referendums, calling them 'blunt and crude devices'. In 1990 the National Party promised to introduce the citizens' initiative. National won the election, but it was not until February 1994 38 39
Kaufmann, Büchi and Braun, Guidebook to Direct Democracy in Switzerland and Beyond. Mark W. Gobbi, as cited in Ben Goschik, 'You're the Voice – Try and Understand it: Some Practical Problems of the Citizens Initiated Referenda Act', Victoria University of Wellington Law Review (VUWLR), Vol. 34 (2003), pp. 695-727.

40

Prof. F. Brookfield, 'Referendums: Legal and Constitutional Aspects', in Alan Simpson (ed.), Referendums: Constitutional and Political Perspectives (Wellington, New Zealand: Victoria University Press, 1992).

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Jeffrey Karp and Peter Aimer, 'Direct Democracy on Trial: The Citizens-Initiated Referendums', in Jack Vowles, Peter Aimer, Jeffrey Karp, Susan Banducci, Raymond Miller, and Ann Sullivan, Proportional Representation on Trial: The 1999 New Zealand General Election and the Fate of MMP (Auckland, New Zealand: Auckland University Press, 2002), pp. 146-159.

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Royal Commission on the Electoral System, 'Towards a Better Democracy', 1986, www.elections.org.nz/voting/mmp/royal-commission-report-1986.html#gen0 pp. 175.

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that the Citizens Initiated Referenda Act 1993 came into force, but referendums were to only be indicative and non-binding on government—a serious deficiency in a modern democracy such as New Zealand. This effectively means citizens' initiatives can and have been, ignored. To date there have only ever been four successful citizens' initiatives in New Zealand: the New Zealand Professional Fire-Fighters Union initiative in 1995, Margaret Robertson's 1997 initiative to reduce the number of MPs to 99, the Norm Withers initiative for tougher prison sentencing also in 1997, and the 2009 anti-smacking initiative promoted by Sherryl Saville and Larry Baldock, a former United Future MP. New Zealand has also held government-initiated referendums (plebiscites) on off-course betting, compulsory military training, compulsory retirement savings, the term of parliament twice, and the voting system 43, but these are of course non-binding also. The reason there have only been four successful citizens' initiatives is because the signatures of 10% of those registered on the electoral roll are required to trigger a referendum—a very high figure and an aspect of the Citizens Initiated Referenda Act 1993 that needs addressing. What issues are suitable for direct democracy? This is an issue that I discussed with John Key in 2004, prior to him becoming Prime Minister of New Zealand. He felt that any constitutional type change should go to referendum as well as putting free votes to referendum. My discussions with other politicians about what issues are suitable for referendums vary considerably. Some feel any issue is suitable to be put to referendum, and others suggest voters should not be allowed to decide on, for example, economic matters that may affect a government’s budget. One would expect that most citizens' initiatives would be on social issues such as immigration, voluntary euthanasia, the death penalty, prostitution law reform, and so on. However, it should not be forgotten that the Swiss have used referendums on all matters imaginable, including matters of finance. The Swiss stubbornly refused to approve government 43
Elections New Zealand, 'Referenda', n.d., www.elections.org.nz/elections/referendum/referendums.html

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spending at the height of Keynesian economic theory's popularity and economic experts argued that the Swiss were selfish and irresponsible. Swiss voters proved to be very wise in hindsight when unemployment and inflation hovered around one and two percent while the rest of the developed world suffered with uncontrolled stagflation. 44 Perhaps it was just luck, but perhaps it was good management. Major objections to direct democracy and some responses Even though direct democracy has been successfully used in Switzerland for over 140 years, it still has its critics, and many who see it as a threat to democracy and something to be avoided at any cost. One major critic of citizen-initiated referendums in New Zealand has been former Prime Minister and law professor, Sir Geoffrey Palmer. When discussing the Citizens Initiated Referenda Act 1993 in his book Bridled Power45 he said: The Act should be repealed. It appears to offer a chance for citizens to influence policy but in substance that opportunity is like a mirage in the desert. Referenda should be reserved for those few and important issues of constitution and conscience that should be bound by the people's voice. What Palmer appears to be saying here is that because referendums are not binding on the government, the Act therefore is a waste of time and should be repealed. Palmer must obviously feel it is unnecessary for citizens to have more input through initiatives otherwise he would be calling for initiatives to actually be made binding. Another critic is Raymond Miller, an Auckland University political scientist and media commentator who also called for the Citizens Initiated Referenda Act 1993, to be repealed on the Q+A television show because they were a waste of time and money. 46 I find it rather surprising that people like this are in effect calling for less democracy. It would appear that they 44 45 46
Walker, Initiative and Referendum: The People's Law. Palmer and Palmer, Bridled Power: New Zealand government under MMP, p. 245. Tim Watkin (Producer). Q + A (Auckland, New Zealand: TVNZ, 2010).

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have little faith in decisions their fellow New Zealander might make via citizens' initiatives or simply that they see elected representation as all that is needed in a modern democracy or perhaps they have another agenda. Voters not competent. One of the most common criticisms of direct democracy is that voters are not competent enough to make sensible decisions. One of the most prominent critics in this regard is Dr. David Magleby: The majority of ballot measures are decided by voters who cannot comprehend the printed description, who have only heard about the measure from a single source, and who are ignorant about the measure except at the highly emotional level of television advertising, the most prevalent source of information for those who have heard of the proposition before voting. The absence of straightforward, understandable, rational argumentation in initiative campaigns, combined with what has been discovered about voting decision making in these situations, raises serious questions about the integrity of the direct legislation process 47. A number of academic studies have focused on how voters make their decisions and how they become informed. What has emerged from these studies is that voters rely on heuristic cues to make their decision. Studies by Lupia and McCubbins 48 show that voters do not need to know many details of a referendum to be able to vote as if they were fully informed. Voters rely on trusted groups, political parties, political organisations and, especially, trusted colleagues to help guide them. This is also how many people make every day decisions and is little different from MPs who do exactly the same. It is impossible for all MPs to become fully informed on everything they are expected to vote on in parliament. Arguably, neither does the average MP appear to be any more intelligent or qualified than the average person on the street. Certainly, 47 48
David Magleby, Direct Legislation: Voting on Ballot Propositions in the United States (Baltimore, USA: Johns Hopkins University Press, 1984), p. 198. Arthur Lupia and Mathew McCubbins, The Democratic Dilemma: Can Citizens Learn What They Need to Know? (New York, USA: Cambridge University Press, 1998).

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there is not any specific academic requirement to enter parliament. As MPs are also forced to vote along party lines as directed by party leaders, their intelligence, integrity, and so on, may not necessarily come into the equation. In one study, Lupia 49 examined voting patterns on five complicated California insurance propositions in 1988, that on the surface were hard to distinguish. Using exit surveys, he classified voters into 'informed' and 'uninformed' groups based on whether they could correctly answer questions about the substance of the measures. He found that uninformed voters could emulate the voting patterns of informed voters simply by knowing the positions interest groups had taken on the referendums. Another aspect to this criticism of voters was raised in James Surowiecki's book The Wisdom Of Crowds.50 The book discussed British scientist Francis Galton who was trying to prove that full male suffrage should not be extended beyond the propertied classes (something we now take very much for granted). He was extremely surprised when he attended a country fair and studied the results of an ox weighing competition. His belief was that the uninformed and uneducated classes could not be trusted to make sensible decisions. He analysed the result from around 800 people who entered this ox weighing competition. There were expert butchers who participated, but also many who knew nothing about animal weights, but had paid their sixpence in the hope of winning. The crowd guessed, on average, that the weight of the slaughtered ox would be 1,197 pounds. The official result was 1,198 pounds. Although he never offered the standard deviation figures, Galton later wrote, 'The result seems more creditable to the trustworthiness of a democratic judgement than might have been expected.' It can also be argued that with modern technology and a much better educated society, voters are now far more capable than ever before in history, to make informed decisions. It has 49 50
Arthur Lupia, 'Shortcuts Versus Encyclopaedias: Information and Voting Behavior in California Insurance Reform Elections', American Political Science Review, Vol. 88 (1994), pp. 63-76. James Surowiecki, Wisdom of the Crowds (New York, USA: Anchor Books, 2005).

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been shown that citizens who have greater rights of participation are also better informed politically,51 and direct democracy gives the Swiss more decision-making power which is independent of government and empowers voters. Information is important, in Switzerland the government must distribute each and every voter with a referendum pamphlet highlighting the pros and cons given in a constructive manner about the question to be decided on. In Switzerland this is distributed prior to the referendum with ample time for public debate. The Swiss government also makes a recommendation on the ballot paper. This does not happen in New Zealand and the only public information is what becomes available through various media outlets which is often lacking in investigative journalism skills due to cost-cutting by media conglomerates. These are weaknesses that need to be addressed in New Zealand and highlights further changes that are needed to the Citizens' Initiated Referenda Act 1993. Voter self-interest. It is often argued that voters are incapable of balancing short-term benefits with long-term costs and that voters are basically selfish and will only support direct democracy initiatives and referendums that reduce taxes, such as the 1978 Proposition 13 in California which concerned the issue of ever-increasing property taxes. This Proposition is often quoted as a glowing example of voter selfishness and that referendums like this have ruined the Californian economy. What most people do not know about this Proposition is that property taxes had risen steadily for a period of five years even though the Californian government had amassed a surplus of over $5b which made the public resent what they felt were unnecessary increases. Critics also overlook the fact that Proposition 9 in 1980 which would have halved state income taxes, failed.52 Such budget referendums have not ruined the Californian

51

Matthias Benz and Alois Stutzer, 'Are Voters Better Informed When They Have a Larger Say in Politics? – Evidence for the European Union and Switzerland', Public Choice, Vol. 119, No. 1-2 (2004), pp. 31-59.

52

Uwe Wagschal, 'Direct Democracy and Public Policymaking', Journal of Public Policy. Vol. 17, No. 2 (May - Aug., 1997), pp. 223-245.

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economy. Empirical evidence from Prof. Matsusaka 53 has exposed that only 32 percent of the 2003-04 state spending was locked in by initiatives and lays blame on the inability of the Californian government to manage the budget. The Swiss experience also contradicts the assumption that voters are only self-interested. In a 1993 referendum, 54.5% of voters approved an increase in the price of petrol and diesel of 21 Swiss cents per litre. Again in 1993, two-thirds of voters had agreed to introduce national VAT and to use a future rise to benefit old-age pensions. 54 Tyranny of the majority. Before anyone should criticise direct democracy as a tool to tyrannise minorities and remove civil rights, thought must also be given to the atrocities elected governments have imposed upon minorities and civil rights around the world. Even here in New Zealand, governments have treated minority groups such as Maori and Chinese with disdain. Maori had huge amounts of their land confiscated from them and thousands of Maori were killed in the process. Chinese immigrants were especially treated harshly when a huge poll tax was imposed upon any wanting to enter New Zealand—a very racist policy. New Zealand is not the only example of this. The Australian government was also notorious for the ill treatment of Aborigines when the 'stolen generation' is taken into account. Aboriginal and Torres Straight children were removed from their families between 1869 and 1969 under Acts of Parliament.55 All of these minority groups who were tyrannised by elected governments—who supposedly protect minorities from tyranny of the majority—have only just recently received apologies from the government. Referendums have sometimes been used against minorities. In 1910 an Oklahoma 53 54 55
John Matsusaka, 'Have Voter Initiatives Paralyzed the California Budget?', USC Law and Public Policy Research Paper No. 03-24, (2003), http://ssrn.com/abstract=476443 Kaufmann, Büchi and Braun, Guidebook to Direct Democracy in Switzerland and Beyond. Peter Read, 'The Stolen Generations: The Removal of Aboriginal Children in New South Wales 1883 to 1969', NSW Ministry of Aboriginal Affairs, 1981/2007, www.daa.nsw.gov.au/publications/Stolen%20Generations%206.pdf

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referendum disenfranchised black citizens and in 1920 a California referendum restricted the property rights of Japanese. However, almost all of the discriminatory 'Jim Crow' laws throughout the Southern states of America were brought about by elected representatives, not direct democracy. Moreover, the fact that racial minorities overwhelmingly support the initiative process, 57% versus 9% for blacks, and 73% versus 3% for Latinos in a 1997 poll, suggests that the risk of tyranny of the majority is small. 56 In contrast to the above, there have been numerous referendums that have supported the rights of minorities: 'Australian voters also rejected a referendum proposal to give the federal parliament power to legislate against the Communist Party. This was in 1951 when Stalin's terror was at its height in Russia'. 57 In 1967, an Australian referendum to reform the constitution in relation to the position of Aboriginals received a 'Yes' vote of 90.8%, one of the highest affirmative referendums ever recorded in a democracy. 58 Likewise, in 1978, a Californian state Senator launched a campaign to prohibit homosexuals from teaching in public schools but it was soundly defeated.59 In the final analysis, on this matter, direct democracy does not appear to be any worse than elected representation, and is possibly even better. Concluding remarks The aim of the preceding has been to argue that a serious 'democratic deficit' exists in the New Zealand political system. We have highlighted concerns regarding the excessive power of Cabinet sovereignty, the lack of government responsiveness, and a degree of government arrogance which, along with reduced political party membership and falling voter turnout, raises major concerns about New Zealand democracy. We introduced five major systemic concerns which belie a lack of checks and balances in New Zealand, and contribute to the democratic 56 57 58 59
Matsusaka, For the Many or the Few: The Initiative Process, Public Policy, and American Democracy. Geoffrey Walker, Initiative and Referendum: The People's Law, p. 85. Butler & Ranney, as cited in Geoffrey Walker, Initiative and Referendum: The People's Law. John Naisbitt, as cited in Geoffrey Walker, Initiative and referendum: The People's Law.

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deficit. We have emphasised the growing concern from academics regarding the use of the urgency procedure in parliament, along with the growing use of free votes in parliament on matters that the public are equally capable of deciding for themselves; these would ensure a more inclusive and democratic society. All these show significant weaknesses in New Zealand democracy and its political system. Finally, it was suggested that direct democracy is a credible option for a modern, highly educated society such as New Zealand, although the Citizens' Initiated Referenda Act 1993 does need an overhaul to make it more robust. In conclusion, the words of Prof. Vernon Bogdanor60 are pertinent, 'In the last resort, the arguments against the referendum are also arguments against democracy, while acceptance of the referendum is but the logical consequence of accepting the democratic form of government.' The decision for New Zealanders now is whether they should continue to allow themselves to be largely excluded from the political decision-making process, or instead demand a more inclusive system that gives them more control over their government. The first imperative, however, is to become aware that there is a democratic deficit, and it needs to be ameliorated.

60

Vernon Bogdanor, The People and the Party System: The Referendum and Electoral Reform in British politics (Cambridge, England: Cambridge University Press, 1981), p. 93.

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