By Edward Willis

In 2020, New Zealanders will vote in two referendums at the general election. Edward Willis investigates whether public referendums are the right way to make law.

New Zealand enjoys a comparatively direct form of democratic government. Our Parliament is closely representative of the voting population thanks to our MMP electoral system. Power distances between senior government officials and ordinary people are comparatively low, meaning issues of public concern are recognised promptly and readily acted on. Our legislative mechanisms are efficient, translating government policy into law (and repealing it again) very responsively. And national elections are held frequently to maintain a close alignment between political ambition and the ever-changing desires of the electorate.

In this context, the use of referendums can perhaps be confusing. Referendums are, after all, designed to bypass government with direct democracy. If democracy is already of a comparatively direct form, what useful functions might referendums serve? This is an important and timely question given that two policy questions (concerning cannabis legalisation and voluntary euthanasia) will be put to the electorate at the next general election. This short analysis aims to canvass some benefits and drawbacks of determining government policy through direct popular vote.

The obvious benefit of referendums is that they give a voice directly to the people affected by a decision. Even the most direct forms of representative democracy put institutional barriers between the policy apparatus of government and the undiluted ‘will of the people.’ For example, New Zealanders only elect their government indirectly by choosing the make up of Parliament. And there are the independent courts and public service who are necessary to achieve the electorate’s policy goals but that (for very good reasons) are insulated from popular accountability mechanisms. Referendums can give popular and democratic legitimacy to policy issues, supplying the political mandate to instigate the endorsed reforms. In a sense, a well-designed and well-timed referendum can cut through the institutional inertia on an issue because it is abundantly clear what the public wants.

In our system of representative, democratic government, we tend to see referendums work well when they address big picture issues. For example, the decision to move to a proportional electoral system was undergirded by popular support as expressed in a referendum. These big picture-type issues challenge and seek to change the institutional arrangements of government. Looking ‘outside the system’ by putting the question directly to the voting public confers a degree of political legitimacy on such big picture changes that is not otherwise available because the political system itself is put into question. Constitutional-level changes can falter without clear support from the people affected by those changes, and this is where referendums can be a particularly good idea.

Presumably this sort of thinking laid behind the decision in the United Kingdom to put the issue of leaving the European Union (colloquially known as ‘Brexit’) to a referendum. However, this has done little to settle the matter, and underscores some of the significant problems that undue reliance on referenda can create. While a clear (albeit narrow) preference to leave the EU was expressed, the complicated domestic and international policy issues involved with such a course of action were left to be determined by the government of the day. The result has been that government accountability for its handling of the Brexit issue has softened, as even when it is performing at its worst it can claim that is it merely giving effect to the will of the people as expressed in the referendum. Bypassing the institutions of government to express a policy position has left an important accountability gap in British politics: no politician or government can sensibly be ejected (the ultimate form of accountability) for the decision to leave the European Union.

Referendums are zero-sum, winner-takes-all mechanisms that can lead to problems when there are still political issues to be resolved. Brexit is, admittedly, an extreme example. But it does help to explain the desire to rely on public referendums to address controversial policy issues such as cannabis legalisation and assisted suicide for the terminally ill. These issues raise complex questions that touch on controversial matters of law, politics and morality. While the urge to ‘give the people a voice’ in such matters is understandable, part of the reality is that politicians do not want to take political responsibility for these decisions. Putting the issue to a popular vote means that responsibility for the decision lies elsewhere, and so political accountability is weakened.

The risks associated with this course of action will be more acute if the results of the referenda are a narrow victory to one side over the other, as was the case with the Brexit vote. Unfortunately, this seems to be a more likely outcome where the issue is a fraught moral one where reasonable people can disagree. The sorts of issues being put to the popular vote at New Zealand’s next election are of a kind that tend to polarise the electorate. Rather than the people expressing their collective will in a unified voice, the result could be the entrenchment of existing divisions within the community. As a political nation we need to consider if we are collectively robust enough to carry on responsibly in the face of such potentially deep divisions.

With these risks in mind, it is reassuring that the government has done some very good work in formulating the legislative and policy agenda that will follow from a successful referendum. Rather than positing a vague and abstract policy position, as we saw with the Brexit referendum, voters will be asked to endorse a specific piece of legislation. That gives legal and political substance to the referendum that might otherwise be lacking.

We might even sensibly claim that popular votes on cannabis and euthanasia reform will not be referendums in the traditional sense. In reality, the population is being given a veto over a proposed change in policy. This means the referendums will in some sense function as part of the legislative process as an adjunct to Parliament. This raises an interesting question about the nature of legislative change in the future. Will other difficult moral policy issues require more than legislation passed in the ordinary way in order to take effect? Will a political desire or popular movement to amend or repeal cannabis or euthanasia reform require an equivalent referendum to have political validity? We do not have clear answers to these questions yet, but the fact that we can credibly ask them suggests that our political and constitutional system may be facing change as a result of these referendums.

It is also notable that the choice of a referendum as an enactment mechanism is a superficially odd choice in the context of cannabis reform. Evidence-based policy has been key to establishing the case for reform in this area, and to some extent that policy basis is put at risk by opening the issue up to a direct popular vote. Doing so suggests a strong faith in the New Zealand public to engage in reasonable and responsible debate over the key issues. It can only be hoped that this faith is repaid, regardless of the outcome.

Referendums raise important political and constitutional questions about how our democratic and legislative system should be complemented by the most direct means of popular influence. They certainly have the potential to carry costs as well as benefits. The perceived success or otherwise of the upcoming referendums on cannabis legalisation and voluntary euthanasia will demonstrate how those costs and benefits play out in the context of New Zealand’s distinctive political system.

Edward Willis is a Lecturer in Law at the University of Auckland. He is an expert in public law and constitutional theory. 

Disclaimer: The ideas expressed in this article reflect the author’s views and not necessarily the views of The Big Q. 

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