Do it because I said so, dammit!

Are you ready to maybe vote in a non-binding referendum on whether Parliament should treat such non-binding referenda as binding? Or, does your head hurt yet?

Following on from the "success" of the anti-anti-smacking law petition and resultant Citizens' Initiated Referendum asking us "Should a smack as part of good parental correction be a criminal offence in New Zealand?", Larry Baldock is gunning for bigger game. This time he's out to change our system of representative democracy.

Of course, I put quote marks around the word success in the previous paragraph because for Larry Baldock and his compadres, the fact that s.59 remains in the Crimes Act means the battle is not yet won. Sure, the high priest of un-PC parenting, Nigel Latta, may have concluded that police and social workers are not prosecuting "good parents" just for "smacking" (as well as having some pretty scathing words for some in the "pro-smacking" lobby). Sure, John Key's promise to repeal the law if it is shown not to be working remains on the table. But the people spoke and they weren't listened to. So now things have to go to a whole new level.

In fact, Larry Baldock wants another Citizens' Initiated Referendum, asking us whether such referenda results should be binding on Parliament. He put his proposed question - "Should Citizens Initiated Referenda seeking to repeal or amend a law be binding?” - to The Clerk of the House of Representatives back in September. Following some submissions on that wording, The Clerk has just announced her decision that the question will be: "Should Parliament be required to pass legislation that implements the majority result of a Citizens' Initiated Referendum where that result supports a law change?"

There's no guarantee we'll ever have to vote on this issue. To force a referendum, Larry Baldock et al will have to gather some 300,000 signatures in the next year. That's a tough ask. I guess we'll have to wait and see if this issue raises the same passion as did the anti-anti-smacking cause, but early indications don't look promising.

But let's say the requisite number of people do put their names to this proposal. Or, to put it another way, should you be one of those who do so? Is Larry Baldock's suggestion a good one, worthy of support?

It may come as no surprise that I think not. First up, the actual question doesn't really give much guidance on what you're going to get from it. I get the basic concern that underpins it: "we live in a democracy, don't we? The bloody government should do what we, the majority, want!" More on that sentiment later.

But what does it actually mean to require legislation be passed "that implements the majority result" of a referendum supporting a law change? (Of course, even if a majority voted in favour of this question, it wouldn't actually "require" anything as that referendum couldn't legally bind Parliament ... at most it would indicate to MPs that they ought to treat future referenda results as if they were legally binding on them.)

Let's take the anti-anti-smacking referendum as an example, and just agree for now that the majority voting in that referendum did want some sort of change to s.59 of the Crimes Act. What would Larry Baldock's proposed question do to this issue?

Well, obviously Parliament would be "required" (albeit in a moral, not a legal sense) to pass a law to implement the majority result and make a smack as part of good parental correction not a criminal offence. Simple enough, right? But just how is Parliament meant to implement that result? Simply get rid of the ban on using force for correction altogether, as Larry Baldock wanted? Or amend s.59 to permit a defined level of "reasonable force" for corrective purposes, as John Boscawen proposes? I mean, does the majority result in the referendum require that Parliament allow parents to use wooden spoons and rulers on their children or not?

More seriously, the point is that legislative choices are very rarely black or white, either/or in nature. So simply saying "I don't like what Law X says at the moment, change it to not X" doesn't really get you all that far if there are numerous possible "not Xes" available. Of course, maybe the point simply is that our politicians should have to do something in response to a majority result at a Citizens' Initiated Referendum. But why should that something have to be immediate legislative change? Why can't it be a careful review of the issue by trustworthy outside eyes, to reassure the public that the concerns they have expressed through the referendum result do not really exist?

Furthermore, changing a law to "not X" in response to majority disapproval of "X" won't necessarily result in an outcome that the majority wants. Returning to our example, let's say that following the anti-anti-smacking referendum Parliament did simply repeal the s.59 ban on using force for corrective purposes. It is then entirely possible that a majority of voters would rather see smacking banned altogether than return to a world where parents had free reign to punish kids using bamboo sticks, chains or hosepipes. In which case, Parliament's action still isn't in line with what the majority wants the law to say. (Note, though, that you wouldn't be able to have another Citizens' Initiated Referendum on the issue for 5 years!)

All of which brings me to the deeper point regarding the basic "the bloody government should do what we, the majority, want" sentiment lying behind this question. Simply put, trying to make our democratic institutions and processes subject to this sort of simplistic populism is a mistake. Yes, it is the people that elect MPs as a vital means of accountability (most importantly, it enables us to ensure no one party or set of individuals become too comfortable in positions of power by regularly and peacefully making changes at the top). And yes, government and legislative processes work on the basis of what a majority of MPs think is the best thing to do. But to go from this to a claim that the law therefore should reflect "what the people want" ignores just what those government and legislative processes do. They introduce a crucial element of deliberation and consideration that is absent when we simply tote up the raw preferences of the general public on an issue.

However, don't take this from me. My colleague at the Auckland Law School, Richard Ekins, has co-written with Alex Penk a far more lucid and in-depth discussion of the issue than I could hope to. Furthermore, he's written it for the Maxim Institute, and he's no fan of the current s.59, so don't dismiss him out of hand as "just another liberal lefty academic"! I'd suggest you click on the link and read what they have to say - then decide if you still think Larry Baldock's proposal is a good one.