I'm no great fan of referenda, but when phrases such as "elected dictatorship" start getting bandied around we all need to draw breath and remember how this 'running the country' thing really works

Well, it's been less than 24 hours since the Keep Our Assets groups nailed their petition, metaphorically, to the door of parliament, and there's already been a fair bit of tosh spoken about it. Some of the worst has come from Greens co-leader Russel Norman, but he's not alone.

On its second crack, 327,224 valid signatures - 18,500 more than required to initiate the referendum - were collected by the Keep Our Assets coalition and yesterday delivered to the Speaker. The referendum question will be: "Do you support the Government selling up to 49% of Meridian Energy, Mighty River Power, Genesis Power, Solid Energy and Air New Zealand?"

Driving home last night I heard Norman on Checkpoint, rejecting questions that National had won the election and therefore had the right, y'know, to govern. Norman said that people vote for an against numerous issues in an election, so it didn't mean National had a mandate for partial asset sales.

"That's not how democracy works," he told Mary Wilson.

Except that's exactly how democracy works. Elections are never single issue referendums and a party like National, which for two elections has been clear as a newly polished pane of glass on a summer's day (with not too much light, but not much cloud either) about its intentions, has every right to, y'know, govern. To argue otherwise makes no sense.

Why?

Because by Norman's logic a governing party has no right to implement policies in its manifesto that don't get a majority in separate polls. Well, that's not how democracy works. If it was, you could look at this random measure from 2003 and say Labour had no right to cut us off from the Privy Council.

Indeed, republicans have never won support for New Zealand to cut ties with the monarchy in any poll ever, so by Norman's logic it would be anti-democratic for any future Labour-Greens government to even consider such a move until it had won at least a few polls.

But we don't want government by polls. Y'know, the sort of polls that urged the US and Britain to go to war in Iraq, for example.

Norman went on to say that we're not "an elected dictatorship" and that Key must listen to the voice of the people. So let me go on with another couple of examples. Because by Norman's rhetoric it's surely more oppressive for National to have started implementing the Greens' insulation scheme in its first term – at least asset sales were a clear part of National's manifesto!

But fair play, if you want to isolate an issue and test the mandate of a single policy, then a referendum is your go-to tool. Just as the anti-smacking brigade did in 2009 with its push to amend the 2007 Crimes Act and the removeable of "reasonable force" as a way to teach your kids a lesson. Fully 88% of those who voted, voted against the Greens-driven law change.

Was it an example of "elected dictatorship" to ignore that referendum? No. Labour rightly decided it had the right to, y'know, govern when it was in government. But by Norman's logic Sue Bradford's amendment should have been repealed; and no he doesn't get to say that one doesn't count because he didn't like the question. If you're going to use rhetoric like "unelected dictatorship" you'd better be willing to stand by the principle, not just the examples you prefer.

Happily, our referenda are non-binding. Norman should be careful what he preaches about, or he will find himself with 'binders' for friends, which I don't think is where he wants to be. I certainly don't want governments bound by referenda; I want them to have flexibility, to use their judgment and to, y'know, govern. They have a mandate to do just that; that's how our democracy works and that's exactly what any Green Party minister would say if he or she were in government one day.

As Andrew has said on radio, a referendum is "a very expensive opinion poll", of little tangible use. But I'd disagree with him and John Key when they say there's no point in holding it. Key went so far as to call it an "utter waste of money".

That's a step too far. And yes, it is arrogant of Key. If he really thinks it's such a terrible waste he should put his money where his mouth is and add the abolition of referenda to his party's manifesto next year. Because this is how our democracy works.

It may be nothing more than symbolic, but as much as I'm not a fan of referenda as a way of, y'know, governing the country, it is a legitiamte form of political activism. It's a statement, a release valve for the people, a form of political pressure that allows groups to isolate an issue of unusual concern to the community and tell the governing party they will pay a price politically for pursuing its agenda.

Yes, you can argue that polls serve just such a purpose and National knows exactly the risk it's taking. But there's something different about every voter being able to exercise a direct expression of opinion on an issue of note.

Governments have every right to respectfully decline to take the requested action, but the debate is worthy. We know how this story ends, sure, but that's no reason to stop it playing out.

Oh, and by the way, are you also tired of journalists using taxpayer costs as a way of creating some tension in every story that involves the workings of our democracy? We want MPs to travel, for example, and we want public debate and for voters to feel engaged in the way the government is run. Or have you not noticed the falling voter numbers all round the democratic world? Spending $9 million on a postal ballot for this referendum is peanuts, you know it is, so please stop doing silly vox pops and pretending people are scared about spending money to have a voice.

Comments (56)

by Richard Aston on September 03, 2013
Richard Aston

So what is the point of public debate if governments are going , y'know, govern.

 

by Andrew Geddis on September 03, 2013
Andrew Geddis

It's a statement, a release valve for the people, a form of political pressure that allows groups to isolate an issue of unusual concern to the community and tell the governing party they will pay a price politically for pursuing its agenda.

Except ... they don't "pay a price politically", do they?

1999: an overwhelming majority of the public vote to cut the number of MPs to 99, and to introduce things like hard labour and minimum sentences into our criminal justice system. The Labour-led Government does neither. It is then reelected in 2002, with an increased share of the vote.

2009: a large majority of those who participate in the referendum vote to allow parents to smack their kids (or something). National then joins with all parties except ACT to vote down David Garret's members bill permitting "reasonable force" for the purposes of parental correction. National is reelected to lead the Government in 2011 (again, with an increased share of the party vote) ... while ACT is reduced from 5 MPs to 1.

So if CIR don't actually result in Governments changing their policies, and the voters seem to forget all about them by the time the next general election rolls around, the $9 million price tag for holding these buys us ... what?

by Dave Kennedy on September 03, 2013
Dave Kennedy

I see national's right to sell state assets as similar to John bank's right to be in Parliament. On legal technicality John Banks is able to continue being part of the Government but morally and based on his past performance it is hard to justify. I think when Russel was talking about how democracy works he was referring to good democratic process rather than the autoratic system we appear to have now. 

If we follow your logic, Tim, once an election occurs a Government should be allowed to govern in a manner that is disconnected from the people it serves. I would like to think Lincoln's definition of democracy should hold weight: "Government of the people, by the people, for the people." This implies that those who have been elected to 'serve' should remain connected to those who put them there and be cognisant of public thinking and values. 

This Government has an arrogance beyond many before in the way it has run roughshod over democratic conventions and processes that have been developed over time to ensure ongoing public participation.

Select Committees were not designed to be totally ignored, legally they obviously can be but surely there is a moral obligation to give some value to submissions from respected institutions and individuals who have reasoned arguments and evidence to support them. I have heard horror stories regarding the disrespectful treatment by Government MPs towards submittors to select committees. If people are using their domocratic right to express concerns in a respectful manner, they shouldn't be treated with contempt and their contribution should be judged on its merits. 

Referenda are like large opinion polls and so is an election, one is binding and the other isn't but that doesn't mean that referenda should be dismissed as inconsequential and a waste of time. Referenda give a clear indication to the Government regarding how voters are thinking and it would be undemocratic to totally ignore the results.

It is disingenuous to compare the smacking referendum with the asset one as there are clear diferences between the two. The wording of the smacking referenda did not ask for an ammendment in the act but referred to a judgment on how smacking should be regarded when part of "good parental correction". This could be open to multiple interpretations and the fact that the legislation was supported by most parties and had an ammendment of John Key's that allowed police discretion surely meant that the people's wishes were accounted for already. The review (no title) of the law by Nigel Latta (a past critic) was seen as a genuine attempt to reassure those who had supported the referedum that their concerns were recognised. The referendum wasn't ignored.

The KOA referenda will give the Government a clear idea whether the majority of voters support the asset sales or not. Unlike Section 59 there is no cross party consenus regarding the asset sales, all polls leading up to the election demonstrated that people were largely against them, select committee submissions to the enabling legislation were almost 99% opposed and there was barely a majority in the final vote. Even Treasury has concerns about the sales. The Government is selling State assets against most advice and the wishes of the people, their moral mandate to do so is exceedingly thin. 

I would have thought that good governance should involve some ethical considerations that are understood rather than having to be implicit in law. I agree with Russel Norman, what we are experiencing is not true democracy, it is governance based on legal techinicality and unchecked ideology. 

 

by Tim Watkin on September 03, 2013
Tim Watkin

Richard, I'm encouraging the debate. But let's not pretend that a general election win doesn't give you a mandate to roll out your manifesto. There's no way we can elect a government on single issues - and I for one wouldn't want to - so we have to let them actually run the country. Critique them, debate, change your mind, whatever. Just don't pretend an election win doesn't give you a mandate.

by Tim Watkin on September 03, 2013
Tim Watkin

@Andrew... a voice? I'm not sure the outcome is really the point, is it? It's the principle. People can pile on political pressure, can be confronted with some issue that matters and see some debate and think about the issue and even cast a vote... In other words it's $9m for a bit of democracy outside an election.

As Scott Yorke has tweeted, if we're so concerned about the puny cost of a referendum, why not cancel elections as well? (of course elections have way bigger consequences, but you take his point...).

And anyway, just because things happened a certain way in the past doesn't mean they'll happen that way again... what's more, who's to say how many people's vote was changed because of those issues...

by Tim Watkin on September 03, 2013
Tim Watkin

Dave, I think I was the one saying such a referendum is NOT a waste of time. So we agree, it's Andrew and Key you need to complain to!

But we agree on little else. We have government by the people - tiny three years terms for a start, so we can replace them pretty darn quick. The rest of your argument is based on your political stripes. You claim this government is arrogant and autocratic - the same complaints were made about the Clark and Muldoon governments. And Fraser's as well, from memory. Were they "elected dictatorships"? Should they have lost the right to govern? Or is that just for the ones you don't like?

What what point does a government's "arrogance" lose it the right to govern? Just when it passes law you don't like? And what about the left-wing government that goes too far for a party member on the other side of the spectrum?

Even if at the extremes it does lose that right to govern, surely the proper response is a new election.

As for your argument about smacking, it falls on the same flaw. You see it as different because you like the one and dislike the other. Sure, the wording was poor and this is clearer. Doesn't change the principle of how a government listens to the will of the majority, which has been pretty clear on both issues. To say the pro-smacking voters' concerns had been "accounted for already" is a little patronising isn't it? They obviously didn't think so and exercised their vote to say so.

You don't have to like the specifics, but you have to be consistent on the principle, don't you?

by Simon Connell on September 03, 2013
Simon Connell

The KOA referenda will give the Government a clear idea whether the majority of voters support the asset sales or not. 

@Dave
A referendum is, in a sense, a self-selecting poll. The votes of people who do vote may not reflect the votes of those who don't. So unless there's a high turnout, the Government can't draw any clear conclusions about whether the majority of voters support the asset sales or not.

a voice? I'm not sure the outcome is really the point, is it? It's the principle. People can pile on political pressure, can be confronted with some issue that matters and see some debate and think about the issue and even cast a vote... In other words it's $9m for a bit of democracy outside an election.

@ Tim The $9m buys the referendum but for any of this democracy to happen requires people setting up debates, having discussions, making protests etc. All of which can happen without holding an expensive non-binding referendum. And there wasn't exactly a lack of discussion of this issue in the last election campaign. Perhaps there will be some additional valuable public discussion and thought that wouldn't have happened if there was no referendum immiment. Perhaps not.

by Graeme Edgeler on September 03, 2013
Graeme Edgeler

National then joins with all parties except ACT to vote down David Garrett's members bill permitting "reasonable force" for the purposes of parental correction...

John Boscawen's bill...

by william blake on September 03, 2013
william blake

I grind my teeth every time one of my friends says " I voted for National but I didn't vote for asset sales". Was it the supposed fool no one "we won't sell assets in the first term" gambit that suckered them in?

If you voted for the smile and wave thats what you have got; our leader smiling and waving goodbye to half of our good assets.

Tim, by using the term 'brigade' for a portion of society you are positioning yourself as a curmudgeon. 

by stuart munro on September 03, 2013
stuart munro

Tim - you are confusing the right to govern with the right to represent. MPs are in fact bound to act in the public interest - a category so loose as not to confine them noticeably. But, like the gift to Comalco, there simply isn't a way to make a public interest argument for asset sales. Which is why Key produces this endless farce in question time - no case can be made for asset sales, they are a corrupt, not an ideological end. Key doesn't have an ideology, he only has a price.

The referendum is important because when Labour and the Greens reverse the asset sales at a significant haircut to 'investors', they can refer back to the referendum and state: "The public did not support these thefts.You cannot get good title from bad title, and you should not expect to profit from buying stolen public property." Investors have been warned.

by mikesh on September 03, 2013
mikesh

These assets don't belong to government, but to the crown, which presumably holds them on behalf of the people. It seems to me that if it is obvious that an overwhelming majority are opposed to to the sale, and also that it is not in the public interest that they be sold,  then the governor general as the crown's representative should have spurned the PM's advice and refused to sell, at least until after anreferendum had been held.  

by Andrew Geddis on September 03, 2013
Andrew Geddis

@Tim

As Scott Yorke has tweeted, if we're so concerned about the puny cost of a referendum, why not cancel elections as well? (of course elections have way bigger consequences, but you take his point...).

Because elections actually have legally binding consequences in terms of determining who gets to make laws and govern the country? That seems like a fairly major difference to me, and one that justifies the financial outlay in holding them.

I'm not against spending money on encouraging political engagement/furthering general public awareness of matters of public policy/etc. I just think that the cost in terms of resources, time and energy that CIR's impose is not justified by the to-date negilgible consequences that they produce. Simply saying "it's more democracy!" doesn't then answer that claim.

Let's put a sharper point on the issue. I propose that the Government should supply every New Zealander with a "democracy" pen, a "participation" piece of paper, and an "involvement" envelope addressed to their local MP. It will then purchase extensive time on radio, TV and in print media/on-line forums in which to run ads encouraging ordinary people to use their pens to write what really is bugging them about the country on their sheets of paper, place the resulting screeds in the envelopes, and post them off. 

How much will this cost? Doesn't matter! Will it achieve anything in terms of practical policy outcomes? Doesn't matter! It's more democracy, so who could possibly oppose it?

@Graeme,

John Boscawen's bill...

David Garrett took the bill over when Boscawen became a Minister ... so Boscawen drafted it, but Garrett sponsored it at first reading.

by Ross on September 03, 2013
Ross

But let's not pretend that a general election win doesn't give you a mandate to roll out your manifesto

And let's not pretend that when only 34% of eligible voters vote for your party, that's a ringing endorsement of your policies. Does National have the right to implement its manifesto? Of course it does. Does that mean it should implement its manifesto? That's another question entirely.

by Dave Kennedy on September 03, 2013
Dave Kennedy

Tim, I believe that no matter what our political persuasion there has to be recognition of intent and precedent in our democratic processes. We are constantly fine tuning the process of governance through legislation and accepted practice that reflects our changing society. While there are differences in approach between right and left leaning governments, by and large, good law passed by a previous government genrally remains and we tend to be on a kind of continuim that generally leads to more enlightened legislation. We have fewer laws that are racist or discriminate against minorities and the recent marraige bill demonstrated how law reflects a changing society. It is difficult to compare a current government with an earlier one when past societies had different understandings and expectations.

Governments do have to govern without constantly referring to the people and sometimes make decisions that may not have wide support.  However any desicion should be able to be easily justified and have some basis in evidence and fact. Obviously the value given to any arguments and evidence will differ according to political persuasion but good process should still occur.

All governments are influenced by ideology and the political survival and will make decisions that are flawed therfore there must be away of providing checks and balances to control ideological extremes. It is especially important when our parliament is a sovreign entity and all powerful. Referenda and select committees are hugely important in providing some checks and balances and most legislation requires a process of consultaion with any stakeholders affected by a future law change. 

As a teacher with over 30 years I have never known a government that has been so disrespectful of good process and so dismissive in the way they manage consultation. As has been revealed by an ombudsman, the process followed to close schools in Christchurch was extreme in its lack of transparency and almost total disregard of community and professional input. I can't remember Ministers from any past governments (Labour or National) who had to threatened to sack boards and principals if they didn't implement government policy (National Standards). The introduction of Charter Schools is an example of imposing something that had absolutely no mandate and is fundamentally in opposition to our current public education system.

You are right to ask the question "What point does a government's "arrogance" lose it the right to govern?"

It is hard to have a definitive answer but I would have thought when many of our independent and professional institutions express serious misgivings around process and evidence then we should be worried. My opinions are not just based on my personal politics, if you read the following article there is evidence that this government is more out of control than people realise, we are not experiencing normal fluctatuations that usually occur with changes of government but a total disregard of sound process that has developed over time. (no title)

 

by Tim Watkin on September 03, 2013
Tim Watkin

@Simon... except that it's not expensive. And yes it certainly guarantees more column inches, more letters to the editor, more blogs, maybe even more TV... And it guarantees what Labour and the Greens want, more rope to hang the government with.

@William... apologies, I hereby de-brigade!

@Stuart ... there simply isn't a way to make a public interest argument for asset sales

That's nonsense. I don't like it, you don't like it, but there's a clear and logical argument for partial sales regarding debt, the capital markets, NZ's investment habits, company efficiency and more. I don't agree, but of course you can argue it.

@Ross... Not enough people voted, agreed. So does that mean we shut down the government or not allow them to enact their policies if people don't get off their chuff? Or just keep going back to the polls until enough people vote? Now that's expensive. What's the turnout threshold you'd find acceptable? 

by Tim Watkin on September 03, 2013
Tim Watkin

Dave, you've answered most of my disagreements already. The quality of a process is largely determined by your ideology. The Greens value consensus, for example. National is typically more hierachical. Both have strengths and weaknesses.

Don't you accept that perhaps your view of National's consultation and processes are coloured by your politics? In Clark's day there were legions of right-wingers commenting on other blogs about the woeful processes of Helengrad. You don't like Key's justifications for policies, but he does have them.

You value the opinions of "independent and professional institutions", except some of the ones I suspect you're referring to aren't exactly neutral. Few institutions are. What about the 'winter of discontent' when independent businesses thought Cullen was monstering the economy? Should they have had power to intervene to stop his arrogance?

Governments do have to govern without constantly referring to the people and sometimes make decisions that may not have wide support

Here we agree. One of the most important parts of democracy is respecting your losses, letting the other side follow the will of the election, and not catastrophising unless we have a clear and utter catastrophe. That was the genius of the American founding fathers and it's vital we don't lose that wisdom just because we don't like the other lot.

by Tim Watkin on September 03, 2013
Tim Watkin

Andrew, I'm finding myself in a corner where I'm defending referenda per se, when in fact I'm not really a fan. That'll learn me. My point is more that they're a part of the current system and so a legitimate political weapon, they're hardly damaging or expensive, they make stoke some public engagement and at least they're not binding.

I don't love them, I'm just not convinced they're pointless.

by Dave Kennedy on September 03, 2013
Dave Kennedy

Tim, I obviously did not argue my case well, i thought my reference to an ombudsman's findings and what is happening in education were attempts to give examples that were less politically biased. I am aware that Treasury and the Law Society may have some bias but they are hardly bastions of left wing thought.

If a government is bound by legislation to consult than you appear to be claiming that National's approach is within a valid range. In the case of the Christchurch school closures key stakeholders were ignored, vital information necessary for any submission was withheld without valid reason and local government was asked by the Education Ministry to lie when questioned. Local Bodies: Ombudsman Exposes Dishonesty and Poor Process.

You appear to be claiming that Judith Collins' treatment of the Electoral Commision's MMP recommendations, and the Christchuch School closures can be considered valid responses from a right leaning government and can easily be justified. 

I am not expecting consensus decision making just that good process is followed that should be expected by any government. My link at the end of my last comment connected to an academic review of how decsions around road developments should be decided. For years a strong cost benefit ratio was used to justify the construction of a new motorway and this has now changed considerably under this government: 

"It is ironic that agovernment that places economic growth and efficiency at centre stage is, through its approach to the evaluation of state highway projects, undermining the very process needed to advance those goals. The inconvenient truth is that the current approach to the ranking and selection of state highway projects, including the roads of national significance, under which the role of economic efficiency has been greatly diluted, has resulted in many hundreds of millions of dollars of benefits annually being squandered in pursuit of the empty goals of ‘strategic fit’ and ‘effectiveness’."

This is not just about my precious Green views not being recognised it is about decisions that are just bad no matter what ones political leanings are. How many billions of dollars spent on badly costed projects or human rights are you prepared to give away before you would consider a clear catastrophe exists? 

What is happening to education is a catastrophe, the billions being spent on economically unjustified motorways is a catastrophe, the GCSB bill is a catastrophe, the growing disaprities of income (one of the worst in the OECD) is a catasrophe. 

by Richard Aston on September 03, 2013
Richard Aston

Thanks Dave for a very reasoned argument for representative government.

by Steve on September 03, 2013
Steve

Referenda should be binding, this is only the 5th one since the CIR act was introduced.

There have been about 30 unsuccessfull attempts. If we had binding referenda we would have fewer undemocratic laws as politicians would not want their laws overturned.

At the end of the day the people should be sovereign not temporarily empowered egos.

by Ross on September 04, 2013
Ross

but there's a clear and logical argument for partial sales regarding debt

Is there? What is it? Let's bear in mind that when National became government in 2008, they were inheriting the lowest debt to GDP ratio in a very long time. Further, the current debt to GDP ratio is lower than the historical average. So, no, I don't think there is a clear and logical argument for asset sales re debt.

http://www.tradingeconomics.com/new-zealand/government-debt-to-gdp

by Ross on September 04, 2013
Ross

How many billions of dollars spent on badly costed projects or human rights are you prepared to give away before you would consider a clear catastrophe exists? 

I think that's a good question. The answer that we can vote out bad governments doesn't inspire confidence because a lot of damage can be done in the meantime.

by Ross on September 04, 2013
Ross

Oh and there's a push from some quarters to increase the electoral term to 4 years! You have got to be joking.

by Tim Watkin on September 04, 2013
Tim Watkin

Dave, thanks for those examples. I take your point on those and can think of others (the law around caregivers not being able to go to court that Andrew so convincingly argued was unconstitutional, for example). But I guess I'm a bit more of a relativist than you and accept that governments always bend rules to their own ends. The Afghans handed over to the US happened under Labour. Or there was Clark's speeding issue. And the Greens have had issues with housing allowances... everyone can be found guilty of some bad process. This lot is worst than most (and I've blogged on that quite a bit), but I don't think that makes them corrupt or beyond the pale.

And for me, you undermine your argument with the other examples at the end - motorways and inequality are political decisions (decisions I don't agree with, as it happens), not anything that undermines our democracy.

by Tim Watkin on September 04, 2013
Tim Watkin

@Steve. Completely disagree. On that basis, why waste our time with select committees and research and debate? Or a parliament at all, if MPs are just egos. Let's just have the rule of the mob. Binding referenda means populism over wisdom, for me.

@Ross. As I hope you know I've written numerous posts opposing asset sales and others about our debt level and the potential for us to borrow more when rates are so low. But just because I disagree with some idea doesn't mean I'm arrogant enough to assume it's completely without merit. Almost every idea has some virtue, it's just a matter of which tips the balance.... As for "bad governments", until they start doing things such as breaking the bill of rights, that's mostly a subjective opinion and shouldn't interrupt a stable, agreed electoral cycle.

by Dave Kennedy on September 04, 2013
Dave Kennedy

Tim, all decisions have a political element but you seem to be arguing that right and left wing governments are just natural political swings and roundabouts that should be tolerated unless something occurs outside the normal range of activity (a catastrophe). I guess that you are a much more tolerant man than I because it was partly Greece's spending on motorways that led to its economic demise (they spent half as much as our government plans to) and our growing income disparity makes us almost the worst in the OECD. Even National's oversight of the Christchurch recovery has an element of catastrophe when 5,000 home owners are still waiting for decisions from insurance companies that are celebrating record profits.

I didn't even mention the environmental catastrophe related to the reversal of climate change commitments, or our environmental degredation that has placed us amongst the worst enviromental performers (per capita) in the world, because I knew you would dismiss them as inconsequential. Yet the worst examples of democracy erosion occurred with the sacking of Environment Canterbury and the plans to erode the provisions relating to community involvement in the RMA. Did Muldoon ever sack a local government to support commercial interests?

 

by Jane Beezle on September 04, 2013
Jane Beezle

You both missed an important point, Tim and Andrew.

$9 million is going to buy us a WHOLE LOT of entertainment.

Just look at these comments!

This puppy is going to be value for money.

by Ross on September 04, 2013
Ross

Binding referenda means populism over wisdom, for me.

That's a curious comment, Tim. Wasn't National elected on a wave of, y'know, populism? It's OK to elect governments on this basis but not binding referenda? I am not sure I follow your logic.

 

by Katharine Moody on September 04, 2013
Katharine Moody

I can understand where Dave Kennedy is coming from - the issue with this government relates to the arbitrary use of executive power to undermine what few constitutional protections we have;

  • the NZ Bill of Rights (ignoring A-G/Crown Law advice stating a number of legislative initiatives were contrary to our rights under NZBORA)
  • the right to access to the courts (numerous examples of legislation which ousts the courts jurisdiction) 
  • the right to be governed by elected representatives and the right to vote in (or out) these representatives (not only ousted ECAN council but amended the legislation guaranteeing a reinstatement of elections in the next term - so still no democracy at ECAN);
  • the right to be heard via the Select Committee process (numerous examples of the use of urgency as a means to avoid the SC process)

The tripartite system itself is not respected by this executive (as was demonstrated by the PM's office putting pressure on Parliamentary Services) and neither is the privacy of individuals, including in particular, the media.  NZDF for goodness sake, sees investigative journalists as subversive "threats".  

To me such constitutional breaches should be subject to impeachment-type proceedings - just one of many gaps in our unwritten constitution. Having such a provision would serve to significantly moderate the arbitrary use of executive power and be of immense benefit to our democracy. 'Elected dictatorship' is unfortunately still alive and well - there was hope that MMP would make a difference, but it has not to the degree hoped. We have more diversity in Parliament but lawmaking has not necessarily improved, consensus is not sought to the degree it should be, those institutions we have which are tasked with holding the exective to account (i.e. Offices of Parliament, Parliament itself, public submission processes, the courts) are all being purposefully undermined,  

These issues should have been part of the constitutional conversation we are presently having but were excluded from the ToRs because the executive, without cross-party support, wrote those ToRs.

There are indeed examples of bad, less than transparent, dictatorial governance practice from other governments - but to use Helen Clark's chauffer's speeding as an example in comparison, is just a strawman.

The crisis in democracy in New Zealand is building. Citizens in Christchurch have been treated appallingly; caregivers of invalid family have been treated appalllingly; justice has not been served where the dead Pike River miners are concerned; same for those who died in the CTV building; the erosion of workers rights is appalling; the invasion of the East Coast/Tuhoe community was appalling and so on. These are just the injustices on our people.

Then there are the injustices to our environment. The executive (the PM no less) ridicules academics by saying we are "a bit like lawyers" and that he can find a contrary view on the state of our environment - one who will present different "facts". The EPA was set up as a Crown agent as opposed to an independent Crown entity. BIG difference in terms of executive control. The responsibility for production of state of the environment reports was given to the executive arm of government (the Ministry and the dept of stats) as opposed to the independent Officer of Parliament, the PCE. Citizens have been denied the right to protest at sea. And so on.

It's about not political colour - it's about basic democratic and human rights - and the breaches of our constitution (such as it is).    

by Katharine Moody on September 04, 2013
Katharine Moody

Oh and PS regards National election manifesto - I think that included no rise in GST and that the PCE would become responsible for the SoE reporting, as just two examples of where they failed to deliver on manifesto promises. So to suggest they "must" proceed with asset sales given they have a mandate is just spin. If the evidence is there to suggest we/they should proceed - then fair enough. But the IPO environment itself has significantly degraded in prospect since they rec'd that "mandate" .. so why proceed in a bad market?  There can only be other reasons which I feel are not being made transparent.

by Dave Kennedy on September 04, 2013
Dave Kennedy

Well said, Katharine! 

While I think the develpment of a single constitution document would be really difficult in the current environment where Maori are still seen to be privileged by many (I think  all treaty settlements combined don't reach the total of the SCF bail out), there should be some basic principals around human and evironmental rights that should be binding on any government. While an upper house will not necessarily work and the Governor General position has limitations, it would still be useful to have a respected independent watch dog that will ensure any government operates inside of our constitution. This current government pushes things as far as the law will allow and has no ethical constraints like the Green Party has.

by Tim Watkin on September 04, 2013
Tim Watkin

Ross, I refer you back to Andrew G's second comment. Of course elections are different from referenda! I don't like single issue governance/parties etc. Elections choose parties to govern for a full term, they don't just shout at someone about a single issue.

by Ross on September 04, 2013
Ross

Ross, I refer you back to Andrew G's second comment. Of course elections are different from referenda!

Andrew's point was about referenda being a waste of money.

You miss the point: the people who vote at elections are the same people who vote on referenda! On the one hand you respect the will of the people when it comes to elections but then suggest that voters cannot be trusted to reach the right decision on important issues. That seems a weird thing to say. If voters can be trusted to make decisions which have "legally binding consequences", surely they can be trusted to vote on a single issue? 

by Tim Watkin on September 04, 2013
Tim Watkin

Katharine, they're all examples that I share some concern over. But my point again is that abuses of process aren't exclusive to this government. Or, at least, similar criticisms can be made about others. The previous government ignored BORA, it also ignored advice from esteemed institutions on issues such as the foreshore and seabed. It used urgency a lot at times. Cunliffe sacked a health board. The NZDF wrote the "subversives" line under a Labour government. The police did the Urewera raids under Labour. (And why is Clark's handling of the speeding a strawman? One of the criticisms of this lot has been poor police process. Well, that's not new).

And then there's Muldoon...

As for your second comment, not sure why one broken promise means they're expected to break another. Presumably we want politicians to keep their promises! No, they don't HAVE to, but by your judgment they're damned if they do, damned if they don't. As for why they're going ahead in a bad market, well because they said they would and they believe in it; they want to keep their base happy. Some argued it was the wrong time for Labour to change employment law, but a government has to keep the base sweet.

 

by Tim Watkin on September 04, 2013
Tim Watkin

Ross, for a start the turnout for an election is much higher and the level of debate and engagement stronger, so it's not "the same people". I believe in a stable democratic electoral cycle during which a range of competing voices get to have their say; I'm suspicious of single issues being pushed by a lobby group and 10 percent of the population based on often emotive and poorly worded questions. Discerning the will of the people after an election is relatively straight-forward; discerning it after, say, the ridiculously worded referendum on law and order which covered about three different points is quite another thing.

by Tim Watkin on September 04, 2013
Tim Watkin

Dave, again amidst some really interesting points you keep crossing the rubicon, for me. I'd agree if you said you didn't like this government's ethics, but to say it has "no ethical constraints" is just silly. Key is not Pol Pot. And to add "...like the Green Party has". Well, we're all human and flawed! No party has all the good ideas and all the virtues.

by Katharine Moody on September 05, 2013
Katharine Moody

Tim, as I said I wish to steer the conversation away from political colour and focus on basic democratic and human rights (I think I might have hijacked what you original article was about, so soory about that). But these constitutional issues have been empirically researched in as unbiased a manner as possible and the evidence clearly indicates, for example, the Key government's use of urgency is not only more frequent than those gone before, but there are more instances where urgency has been used to avoid the select committee process on matters that involve fundamental rights than was the case with any other government since MMP. (FPP governments used urgency even more frequently). See;

Geiringer, C., Higbee, P. and McLeay, E. (2011) What’s the Hurry? Urgency in the New Zealand legislative process 1987-2010, Wellington: Victoria University Press.

and

McLeay, E., Geiringer, C. and Higbee, P. (2012) ‘Urgent’ legislation in the New Zealand House of Representatives and the bypassing of select committee scrutiny’, Politics Quarterly, 8(2): 12-22.

And on how different executive's have pushed the constitutional boundaries with examples across a number of governments, this is a good one;

Kumarasingham, H. (2010) ‘Executive Power: 60 years on has anything changed?’, Policy Quarterly, 6(4): 46-52.

I think Clark led the way on how to "work" MMP to push the constitutional boundaries as a means to retain and exert executive power under a minority coalition government - and Key has taken that lead/lesson and really run with it. Just as Bolger/Richardson picked up where Lange/Douglas left off on neoliberalism and really ran with it. So, yes, they are all culpable - some more so than others.  

But that is not the issue - our rights are the issue - and these are being eroded, and not so slowly these days.

by Katharine Moody on September 05, 2013
Katharine Moody

Dave, regarding this comment "it would still be useful to have a respected independent watch dog that will ensure any government operates inside of our constitution."

We have three independent watchdogs, all very respected (the three Offices of Parliament) but when submitting to SCs for example, their advice is often ignored. So the key word above is "ensure" - and ensure requires "teeth" and a process to test and judge a breach - and a means to then require remedy. That Kumarsingham article referenced above makes some comment on possible constitutional arrangements that might assist. It is a shame we are not discussing any of these in this constitutional conversation we are presently having.

by DeepRed on September 05, 2013
DeepRed

Tim W: "Key is not Pol Pot."

He certainly isn't, and Reductio ad Whateverum arguments can get a bit silly. If there's one figure that Key can be increasingly compared with, though, it'd probably be Sir Joh of Queensland or Lee Kuan Yew.

by Dave Kennedy on September 05, 2013
Dave Kennedy

Tim, most professions (lawyers, doctors and teachers) have codes of ethics that guide their behaviour and practice. These provide 'ethical constraints' that determine good conduct. Obviously the Greens aren't perfect but we do have our charter and our values that are essentially a code of ethics: Green Party Values

I have searched the National Party website and see nothing similar and I have observed behaviour that suggests that the bottom line for this Government tends to be a legal one rather than a moral one. John Banks would not still be sitting in Parliament if a code of ethics had existed.

In a select committee that reviewed our tobacco laws, I remember Hone Harawira asking a tobacco executive if he considered what he did was moral "it's legal" was the answer. It reflects John Key's response to questions regarding his support of Banks. 

"You keep crossing the rubicon"

Really? Do you really conisder my views are that extreme?

by Dave Kennedy on September 05, 2013
Dave Kennedy

Katherine, you make a good point regarding the three offices of parliament, I had almost forgotten they existed, such is their ability to contstrain this Government. Interestingly the new reporting system on the state of our environment will neatly side step the Commissioner for the Environment, therefore the Government has insured that any environmental reporting will be under their terms, not an independent authority. It is also the first time under any government that I have been aware of an ombudsman initiating their own inquiry because of their personal concerns (Christchurch Schools). 

I wonder if the problem we have is parliament's sovereign powers, it appears to be too easy to change legislation to make what should be illegal or unconstitutional possible. If a government doesn't like the rules it is too easy to change them.

Tim, when you say that abuses of process has occurred under Labour as well you are correct and I think that the Seabed and Foreshore legislation was one of their worst. However, if you compare the breadth of legislation and intent of each government you will see that Labour (mainly through Palmer) actually strengthened much of our processes and advanced human rights. National, on the other hand, has spent much of its time dismantling and weakening good law. Labour sometimes ignored good process as you have shown, but actually changing the process so blatantly is seriously "crossing the rubicon".

by stuart munro on September 05, 2013
stuart munro

there's a clear and logical argument for partial sales regarding debt, the capital markets, NZ's investment habits, company efficiency and more.

 

by stuart munro on September 05, 2013
stuart munro

What happened to my post? 90% is gone.

by Tim Watkin on September 05, 2013
Tim Watkin

Dave, I don't think you're extreme, but just that you see the Greens as goodies and National as baddies. You make claims that certain policies are somehow objectively bad, when really they're just ones that you don't like, but that Phil O'Reilly, say, could spend an hour defending with great gusto.

I agree with many of your specifics, including John Banks. But take your pick of any number of other MPs in the past. Governments always twist their lines to keep their majority and protect their own. Should Mallard have gone for his punch? Field have gone much earlier? Dyson never allowed back after her drink-driving and Dalziel for her lie?

"Good law" is often a matter of opinion – again, a National party member could make a case for how Green policies would "weaken good law" as well.

by Dave Kennedy on September 05, 2013
Dave Kennedy

Tim, the essence of the discussion is actually around democratic process and the level of public engagement that should occur between elections. You seem to be arguing that after an election Government's have the right to govern unimpeded by public interferrence. I do understand that Green values and National values are different and that fossil fuel and coal are given greater value by National and that they think milk production is more important than clean water. I don't see this as an argument about the end decisions or which party did more 'bad' things but about the democratic processes that are used to progress decisions. 

Katherine and I seem to be both stating that there should be some fundamental democratic rights and processes that should not be negotiable under any government. Are you seriously saying that any government should be able to easily dismantal and ignore democratic instituions and processes that have been established over time under past governments and to deny the ability of those most effected by decisions to have any input. The bahaviour of different MPs and how they were tolerated by different parties is actually a distraction. What we should be arguing over are whether any Government should be able to:

  • Refuse to allow democracy to return to the Canterbury region against advice.
  • Block public access to information for purely political reasons.
  • Write law that will deny basic human rights
  • Disrespect and run roughshod over the select committee process
  • Use urgency where the need for it is not established to progress legsilation
  • Allowing a Government agency to access private comminications with minimal justification.
  • Make no attempt to gain cross party consensus on the MMP recommendations. 
  • Publicly denigrate people and institutions providing advice in good faith that is not in line with Government thinking (Human Rights Commission, Binnie).

I guess when I talk about "good law" I am referring to laws that have been established using a robust democtratic process and are still seen to be functioning as intended. If a  law (i.e. protecting individual rights) is to be dismantled then any Government, that is supposed to consider the interests of all, should follow a transparent and democratic process to do so. I just happen to think that bypassing select committees, blocking public access to information relating to the decision, using urgency when it is clearly not necessary and passing significant legislation by only one vote is not democratic and not acceptable. That is not how "good" law is made!

 

by Dave Kennedy on September 05, 2013
Dave Kennedy

I wish I could edit comments as I always discover puntuation and spelling errors after I post. 

by Ross on September 05, 2013
Ross

Ross, for a start the turnout for an election is much higher and the level of debate and engagement stronger, so it's not "the same people".

Tim, that is clearly false because referenda can and have been held at the same time as a general election, which means exactly the same people have voted. (At the 1999 election, two referendums were put before voters.) More than 1.6 million voters had their say on the anti-smacking legislation, hardly a number to sniff at.

I'm inclined also to think that because there's only one issue being debated, we've had better quality debates on that one issue than we've seen over a myriad of issues that political parties go to the polls on. That stands to reason as the media are likely to provide more info on one issue than if they're covering several issues at once.

It is simply not logical to say that you trust voters to make the right call when it comes to electing MPs but not trusting the same people when it comes to deciding the outcome of a referendum.

by mikesh on September 05, 2013
mikesh

It seems to me that the purpose of a referendum is to influence parliament. Therefore a referendum makes no sense unless it is held before the event. It should be given an opportunity to exert its inluence before "the horse has bolted" so to speak.

by Ross on September 05, 2013
Ross

Mikesh

I tend to agree, but that could only happen if referenda were binding which in my opinion they should be. A majority of NZers agree.

http://sayit.co.nz/blog/should-citizens-initiated-referendums-be-binding

by william blake on September 05, 2013
william blake

...so how would a binding referendum work? would you need to get 51% of all people who voted at the last election or 51% of all New Zealanders if the issue is especially fashionable. (2,000,000 signatures to overturn THAT bloody dog law or clause in the RMA)

And wouldn't people get sick of doing the work of a principled political party without the perks of office?

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