The Conservatives have made a complete cockup of their “bottom line” for making a deal with National about going into government. They want to make referendums legally binding on the government.
It is something that no rational government in NZ would agree with because it is impossible from several different criteria.
From my viewpoint, just looking at the questions that petitions for citizen initiated referendums (CIR) have started with and even wound up doing make the whole thing ridiculous. If you have to think about how they have to be implemented in law and governmental process they usually wind up being absurd. Left is proposed question and on the right is the final.
| Should the size of Parliament be reduced from 120 Members of Parliament to 100 by reducing the number of “list” MPs from 55 seats to 35 seats? | Should the size of Parliament be reduced from 120 Members of Parliament to 100 by reducing the number elected from the party list? |
This question was from 1994. At the time there were 65 electorate seats of which 5 were Maori seats and 55 list seats. Now there are 71 electorates and 49 list seats.
The reason for the rise in electorate seats is due to limits placed on what electorates may exist and population changes. For instance the number of seats for the South Island are fixed at 16. This effectively determines the size of the electorates for the whole country. The Maori seats are related to the number of people on the Maori roll (currently 7 seats).
So if we had done what this dumbarse referendum question (and a similar one in 1997) had proposed we would be now looking at having a even smaller list – probably about 29. Over time it would have made the proportionality of the MMP steadily more and more redundant assuming the population kept growing as it has been. Both were quite stupid questions and badly thought through.
In fact if you look through the questions that have been proposed and even voted on, they uniformly look completely stupid if you look at how you’d implement them in our current system. For instance the classic smacking question of 2007
Should a smack as part of good parental correction be a criminal offence in New Zealand?
As John Key said, this was a loaded question. But more importantly I can’t and couldn’t see any real way of putting it into law. Legally it wasn’t a criminal offence at the time unless you were beating the crap out of your kid.
And “good” isn’t something that neither the legislation nor the courts would have been able to decide. It was one of more monumentally stupid questions even in the list of stupid questions that have been proposed for CIR’s, and shows no sign of ever having had advice from a competent lawyer.
Anyway you can go through virtually all of the CIR questions and find similar logical problems.
As Andrew Geddis convincingly pointed out on Pundit “Colin Craig is asking for the impossible“, you simply can’t bind other governments easily.
I can’t see how this binding citizens initiated referendum process would work in New Zealand. Explaining why this is so will take a bit of backfilling.
Other countries that have binding referendums – and there’s actually quite a lot of them – do so because they are included in the nation’s Constitution. In other words, the country has a written document that sets out the “rules for making rules” in that nation. In that document, the lawmaking powers of its legislature are specified, and in addition there is power given to the populace to make laws directly through the referendum process. And because the Constitution – the written document – is “higher” law, it stops the legislature from ignoring/overriding what is said in a referendum, because it says the legislature doesn’t have the power to do so. And if the legislature exceeds its powers, the courts can pull them up for doing so (because the Constitution is a legal document, and the courts are in charge of ensuring it is followed).
New Zealand isn’t like that. We have no written constitutional document of this sort. What we have instead are some fundamental constitutional principles that underpin how our system of government works. And one of those principles is “parliamentary sovereignty” (and at this point, anyone who took Laws 204: Public Law at Otago just collapsed on the ground and starting twitching). Put simply, our Parliament gets to make whatever laws it wants and whatever laws it makes are then binding on everyone in New Zealand (including the courts). What is more, every Parliament is “sovereign”, in that it can revisit and undo any law that a previous Parliament enacted – there’s no way for a Parliament of today to tell a future Parliament “you cannot pass laws on this issue”, or “you must stick with our view of what the law should be”.
So, here’s the problem. How in a system of parliamentary sovereignty can Parliament (in the shape of a National/Conservative majority) pass a law that says that the general public is able to, by referendum, bind future Parliaments in their lawmaking decisions?
Contrary to Colin Craig’s conservative’s position of being unable to govern without them, after having 20 years of CIR’s and seeing what the results are, I really can’t see what in the hell that we have them for.
Aside from the constitutional difficulties, we now have a history of having a piss-poor implementable quality of the questions. They are always couched in terms that would be too simple even for a PR hack and effectively stifle rational debate over a topic. This means that they are effectively useless as a instrument of government.
In the event that we ever manage to have a actual constitution, I’d hate to have these referendum questions actually embedded into a legal document like a constitution.
Despite my earlier support for them, I think that we should reconsider having them at all.
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