Muriel Newman: Restoring Democracy – a speech to Grey Power

As we look ahead to the November election, many New Zealanders will be thinking “here we go again” – months of electioneering and loads of Party promises only to be followed by three years of a Parliamentary dictatorship where governing parties do what they want irrespective of the wishes of voters. All too often, long-term problems, that everyone knows need to be addressed, are deferred in favour of populist short term political considerations. This is one of the main reasons why the country is failing to prosper.

Candidates always pledge to represent the views of their electorates - if they are elected. But once they win office they become the puppets of their Party machines, lacking the courage to “cross the floor” on contentious issues in order to truly represent the views of their constituents.

We saw it all in 2007 when a grand coalition of Parliamentarians voted in favour of Sue Bradford’s radical ban on smacking. Even thought the majority of New Zealanders opposed the law, no Members of Parliament crossed the floor. That is in spite of many saying privately that they opposed the smacking ban as a gross intrusion by the State into family life - and something that would never curb the country’s appalling child abuse statistics. In other words, they put the demands of their party ahead of representing the voters who elected them into office.

Meanwhile anyone who has had anything to do with raising children knows that the old law, which allowed reasonable force to discipline a child - while outlawing excessive force or violence - was working. There was no need to change the law. All the new law has done is criminalise good parents. Those who abuse and beat their children take no notice of laws anyway, so the dreadful abuse and killing of children continues unabated - largely because the politicians ignore the underlying issues and fail to bring in the social reforms that are needed to address this horrific problem.

The unintended consequences of this ridiculous smacking ban are everywhere. Children threatening to report their parents, Police and Child, Youth and Family investigating families, massive increases in bullying in schools, a huge rise in teenage violence and antisocial behaviour, a lack of respect for adults and authority, and parents of young children prone to tantrums being driven round the bend!

In an effort to force MPs to listen to the public’s view, Larry Baldock launched a Citizens Initiated Referendum (CIR) in 2007 asking whether smacking should be a criminal offence. The outcome was clear. An overwhelming 87 percent of the public were opposed to the smacking ban. In addition, the referendum had a sizable 56 percent turnout - greater than many local body election turnouts.

However, in spite of the fact that 1.6 million Kiwis wanted a law change, the Prime Minister decided to ignore them and leave the smacking ban in place.

That event, more than any other, highlights the fatal flaw in our democratic system. When a government goes off the rails and stops representing the views of the people who put them into office, there are no checks and balances in our system – no way at all to protect the public interest.

This problem has become worse under MMP as small parties that only won 2-3 percent of the popular vote hold the balance of power and control the direction of the country. These small parties are likely to hold extreme views, yet their radical policies get passed into law.

Another case in point is the Marine and Coastal Area Act, which was passed into law in March.

The Maori Party always wanted Maori to gain ownership and control of New Zealand’s entire coastline. The more radical sovereignty activists want ownership of the entire country. Given their extreme views, it is unbelievable that the National Party supported them. What’s worse is that the public were deliberately misled by John Key, who, in order to allay public concerns about the law change, promised that the new law would not go ahead unless the public were in support. The problem was that it turned out to be a cynical deception since, as we were to find out, he clearly had no intention at all of ever honouring that promise.

Submissions and polls showed Maori and non-Maori alike were overwhelmingly opposed to the law change. But John Key ignored public opinion and passed the law anyway. What this means is that while the foreshore and seabed and all the mineral wealth contained within it - which is worth many trillions of dollars - had always belonged to all New Zealanders equally under Crown ownership, it will now be progressively privatised to Maori tribal corporations.

The government expects that I0 percent of the coast will be privatised in the first instance. That’s the distance from Cape Reinga to the Bluff wrapped around the coast and stretched out to the 12 nautical mile limit. But, with National taking the whole coast and the Territorial Sea out of the protection of Crown ownership to be owned by “no-one”, Maori have indicated they will not stop until they control it all - the entire foreshore, all of the seabed, and the whole Territorial Sea.

As you know, I run the New Zealand Centre for Political Research, a public policy think tank that I set up in 2005 after 9 years as a Member of Parliament, and as a result, I follow the development of public policy. When I realised that National was colluding with the Maori Party over the foreshore and seabed - that they were planning to swap our precious coastline for Maori Party support after the next election - I formed the Coastal Coalition as an umbrella group to oppose the law change.

Our efforts to stop the law change were supported by many thousands of New Zealanders, including organisations like Grey Power, but in spite of our best efforts we couldn’t stop the government. 

However, we certainly haven’t given up and are in the throes of launching a Citizens Initiated Referendum to repeal the Marine and Coastal Area Act and restore Crown ownership of the foreshore and seabed. It should be approved by Parliament’s Clerk next month, and then we will be ready to embark on the massive job of collecting 300,000 petition signatures within a year so that we can force a public referendum on the issue. If you would like to help us collect those signatures, we would be most grateful – you can register on the Coastal Coalition website at www.CoastalCoalition.co.nz.  We need all the assistance we can get!

In launching our referendum, a problem we are mindful of - which is the same one that Larry Baldock would have faced with his referendum on smacking - is the question of whether the government will take any notice of the referendum result, because CIRs are not binding.

I'd like to address this issue in two ways – first politically and secondly by looking at the mechanics of the process.

Politically speaking, if we look ahead to the next election, the choices are a new government led by National or a new government led by Labour. If National heads a government, under the present Party arrangements, they are likely to be supported by ACT, the Maori Party and United Future. If Labour heads the government they are likely to be supported by the Greens, New Zealand First, and the Mana Party. Labour, the Greens, New Zealand First, and the Mana Party were all opposed to the Marine and Coastal Area Act, so if they form a government, our referendum will not fall on deaf ears and may well be the catalyst for a law change.

If National leads the government, a revitalised ACT under Don Brash may well be in a position to force National to repeal the law - especially if the repeal of the Marine and Coastal Area Act is one of their bottom line election policies. What all of this means, is that polically speaking, our referendum will not fall on deaf ears but will become a catalyst for action – for the return to Crown ownership of the foreshore and seabed.

The second issue I would like to mention, regarding referenda, is the mechanics. CIR are held under the Citizens Initiated Referenda Act 1993, an Act of Parliament introduced by the National Party. During the debate on the bill, National MPs indicated that it was their intention to make referenda binding – if they worked out OK. Since the Act was first introduced, New Zealand has certainly not been over-run by successful referenda - there have only ever been four in the 18 years since the law was passed: the firefighters’ referendum in 1995, Margaret Robertson’s call for 99 MPs in 1999, Norm Withers call for tougher penalties for violent crime in 1999, and Larry Baldock’s repeal of the smacking ban in 2007. The track record of governments honouring successful referenda is dismal - only the firefighters’ referendum led to a satisfactory outcome.

At the present time New Zealand is one of only four countries in the world to allow the use CIR. But we have the dubious honour of being the only country where CIR are not binding on the government! In New Zealand Members f Parliament trust the public enough to vote them into office, but not enough to say what’s good for the country.

Well, it is time that was changed! It’s time some public safeguards were introduced into our democratic system, so that when our government goes off the rails and turns its back on the views of voters, the public are empowered to react and respond.

Some countries have an Upper House to act as a public watchdog on the House of Representatives. For 100 years New Zealand had an Upper House, the Legislative Council, modelled on the British House of Lords, but it was abolished in 1950. And while reinstating an Upper House might have merit for New Zealand, I do not see a public appetite for that at the present time.

So the realistic answer for New Zealand is to facilitate a simple law change to make CIR binding - as they are in the USA, Switzerland, and Italy, the only other countries to use CIR.

In the USA, binding referenda had their origins in the 1600s in New England townships, where local decisions were made at townhall meetings. These days some 27 States use referenda, many of which have been operating them for over 100 years. The US system is based around regular Ballots which enable voters to propose or oppose law changes. Citizens can propose new laws through “Direct Initiatives”, which are included on the ballot paper if the petitioner is successful in collecting the required number of signatures – usually 5-10 percent of the number of voters lodged in the last election for Governor. And citizens can invoke a “People’s Veto” (also called a “Popular Referendum”) to throw out new laws that have been passed by their government, if the petitioner can collect the required number of signatures within 90 of the law being passed. Once on the ballot, initiatives and vetos are voted on by all citizens and the results are binding on the government.

Interestingly, initiatives and vetos are not used as often as you might think. The reason is that politicians are much more in tune with the needs and views of their voters. They do not want the embarrassment of having to watch citizens passing laws that the majority of the public believe should be in place, and nor do they want egg on their face as laws they have just passed are thrown out by voters.

The US system also empowers citizens the power to pass contentious laws that their politicians are not prepared to tackle - such as an end to state-sponsored racism. A direct initiative to prohibit preferential treatment based on race was passed in California in 1995, to be followed by Washington State in 1997, Michigan in 2006, Nebraska in 2008, and Arizona in 2010.

In New Zealand, the ill-advised smacking ban is clearly a contentious issue that Members of Parliament are not prepared to put right, so if our referenda were binding, I suspect the smacking ban would soon be a thing of the past. As would the Marine and Coastal Area Act!

The country that is best known for their use of binding citizens’ referenda is Switzerland, where voters have been able to influence their government at every level since 1848. This close involvement of citizens with government policy is regarded as a key factor in the fact that the Swiss have one of the highest standards of living in the world, with high incomes and low taxes. Certainly, when you look at how New Zealand’s economic performance has slumped over the years – from one of the OECD’s wealthiest nations to one of the poorest – the only conclusion you can reach, is that leaving it all to the politicians may not be the best answer!

The process of making Citizens Initiated Referenda binding in New Zealand is not difficult. All it needs is a very simple law change that involves changing the word “indicative” to the word “binding” in Clause 3 of the CIR Act. All of the other changes needed in the Act are essentially consequential.

So, in the lead up to the election, why not ask Members of Parliament and candidates whether they will support such a change to the law to make referenda binding? Remind them that since they trust you to vote them into office, why shouldn’t they trust you to know what’s good for the country. And don’t be satisfied when they say that yes of course they can trust you, it’s just the others that can’t be trusted! Just remind them of the wisdom of the crowds - that in general large groups of people make better decisions than individuals or small groups, just so long as they are well informed, which is an integral part of the referendum process.

Let’s start collectively pushing for referenda to be made binding so that we create a movement for change – grass roots democracy in action. This is one of the main policy ideas that the New Zealand Centre for Political Research is promoting as we believe that a law change in this area will be very good for the country. 

Binding referenda are of course frequently used at local government level. Former Wanganui Mayor Michael Laws used a referendum of ratepayers in the high profile “H” case, to asses whether the people of the region wanted the spelling of the name of their city changed. Their overwhelming opposition enabled the old spelling to remain as an official option. Mayor Laws also used referenda to ask ratepayers to help in prioritising public spending, and to advise on the rates-strike.

Just last week there was an announcement by the New Plymouth Mayor Harry Duynhoven that the controversial call by local Maori for the creation of two Maori wards and the establishment of two dedicated Maori seats on the local council would be held over to be decided by voters through a binding referendum at the 2013 local body election.  According to reports, those Maori who were demanding that the Maori wards and seats be established now, without input from the public, staged a walk-out when the referendum was announced, calling the council rednecks and racists.

This raises the issue of whether any public support remains for the dedicated Maori seats in our New Zealand Parliament. Four Maori seats were, of course, temporarily established in 1867 for a five-year period in order to give the vote to Maori men, who owned land communally and therefore did not qualify under the private property requirements of the day. When New Zealand adopted the universal franchise in 1893, the Maori seats should have been abolished - but they remained. In 1986 the Royal Commission on the Electoral System recommended that the Maori seats should be abolished if New Zealand adopted MMP. We adopted MMP but still the seats remain. As a result, Maori are now over-represented in our Parliament.

Many New Zealanders believe that race-based representation has no place in a modern society. They believe we are all New Zealanders first, and British or European or Maori or Asian or Pacific Islanders or anything else, second. But by classifying us all as Maori or non-Maori - and delivering preferential treatment based on race – the government is elevating Maori to a privileged position within society. This situation is being exacerbated by the Marine and Coastal Area Act - which will privatise invaluable public resources to Maori corporations – and the United Nations Declaration of the Rights of Indigenous Peoples - which even Helen Clark believed was too divisive and dangerous to support.  

Meanwhile, by sanctioning the Indigenous Rights declaration, the government is encouraging iwi, who have used the Treaty of Waitangi Settlement process to gain three or four full and final settlements, to use “indigenous rights” as a new guise for making claims. This new strategy will enable iwi corporations to gain control of even more public resources, just so long as unscrupulous politicians - who care nothing for the rights of the majority of New Zealanders, only for the manufactured rights of the minority - are in positions of power and control. To our collective cost – and National’s shame - the new law to privatise our coast is on track to become another divisive grievance industry. And with the power base for the on-going grasp for more and more taxpayer funded resources emanating from the Maori seats in Parliament, many New Zealanders now believe they have outlived their useful life.

In summary, between elections, New Zealand’s political system all too often resembles a Parliamentary dictatorship rather than a Parliamentary democracy, leaving the public frustrated and disillusioned. In fact, when governments fail to listen to the voice of the people, they fail to act in the best interests of the country. But if the public had the power to initiate and veto law changes, then that would make all the difference. Reinstating democracy through making referenda binding would truly give voters the power to create a government of the people, by the people, and for the people. That is a goal that is surely worth fighting for.

For more information visit the New Zealand Centre for Political Research at www.nzcpr.com