Wednesday, November 18, 2009

A veto request to be ignored

The Legislation Advisory Committee has advised Mary Harris, the Clerk of the House to veto Larry Baldock's petition question which aims to bind citizens initiated referenda, because it would contradict the fundamental purpose of the Citizens Initiated Referenda Act 1993, which provided for non-binding referendums.

On 29 October, Larry Baldock wrote to the Clerk [DOC] responding to an October 23 letter to the Clerk from legislation advisory committee chair Sir Geoffrey Palmer, in which he said:
The Committee’s view is that the wording of the proposed referendum is defective. Indeed that Committee does not think that these defects are capable of being remedied.... The question that is proposed, in all its ambiguities and circularity, is not in our view compatible with the legislation under which it is proposed to be conducted.

[T]he framers of the [1993] Act considered the questions and decided that indicative referenda could not be and should not be binding. So the question is outside the scope of the Act.
The Herald noted that the Clerk of the House must approve or reject the final wording for the vote. Slight problem: She can't reject the wording, as a petition question - irredeemably defective or otherwise - cannot be vetoed unless the question either relates to a similar referendum held within the previous five years, or an electoral petition.

But the question can be amended. So by December 9, Larry Baldock's question, Should Citizens Initiated Referenda seeking to repeal or amend a law be binding? or a form of it, preferably with " on Parliament" tagged on the end of the question, will be approved by the Clerk.

Baldock thinks the question can have its intent clarified through public debate and the petition process. But if he is not going to clarify his intent and how he wants Parliament to respond, before the first signature is sought, it is unlikely he will get the required signatures to force a referendum.

Binding referendums would bypass the legislative and select committee process.With binding referendums, we would have to vote on specific and detailed pieces of legislation, like they do in California to amend legislation, for example, such as aiming to bypass the legislature in attempts to abolish divorce laws.Yes, really. We could end up bypassing the legislative process to change the Marriage Act 1955 to allow for same sex marriage with enough public support.

Baldock would hate that.

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Anonymous Nivetha said...

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November 18, 2009 at 1:01 AM  
Blogger solatnz said...

Baldock must think that "the silent majority" thinks like him or he wouldn't be pushing for binding referenda.

I shows a fundamental misunderstanding of democracy and its process, which seems to be pretty common amongst the Christian right.

November 18, 2009 at 11:25 AM  
Anonymous Chuck said...

Solatnz, I am neither Christian or right. Can you kindly explain how a Parliament without any checks or balances can introduce legislation that is opposed by 87% of the voters that is democratic?

When you get a little older you might realise there is no perfect system including MMP – I have read your blog.

I can see definite drawbacks in CIR - the main one being getting the wording correct and workable. I think Larry should have stuck to repeal and left out amend. The same problem of wording would apply to amending legislation as introducing it.

I cannot think of one piece of moral legislation that if not introduced would be detrimental to New Zealand if not passed without some sort of check. Most countries have either a constitution or a second house. New Zealand has neither. I have heard the argument that legislation is moral. That is arguing semantics. Moral legislation has traditionally meant such things as the anti-smacking law as well as legislation related to liquor and legislation involving issues such as abortion and euthanasia.

Although I think it unlikely I would be very concerned if a conservative religious party held the balance of power and were able to excerpt enough power to enact anti-abortion laws that 87% of the voters opposed. That would be equally undemocratic to the anti-smacking law imposed by a small minority or MPs. If a free vote was allowed it would not have been passed. It got enacted because of a number of backroom deals.

In Switzerland before legislation becomes law the voters can call for a veto with a reasonable number of signatures. The politicians know this so they pass reasonable law as they not want their legislation to be vetoed. If this had have been the case in New Zealand the anti-smacking legislation would have been along the lines of John Boscawen’s private members bill. Can you please explain how this would be undemocratic or produce worse legislation than at present?

November 18, 2009 at 9:04 PM  
Blogger Swimming said...

I think Larry should have stuck to repeal and left out amend

Chuck, repeal doesn't do what I suspect you think it does.

November 18, 2009 at 10:06 PM  
Anonymous Chris C said...

Chuck said...

Solatnz, I am neither Christian or right. Can you kindly explain how a Parliament without any checks or balances can introduce legislation that is opposed by 87% of the voters that is democratic?

87% of those who voted. 48.96% of the total electorate. So, effectively, a minority, if you assume those who don't turn out for a vote are happy with the status quo. Which is what we do, generally.

It's a shame Larry didn't quote from Tony Ryall's speech in Parliament that day:

"I also want to alert the House to the fact that, if it were to pass the Bill, I know who would be organising the first petition. It would be the man who has initiated more petitions to this House in the past 12 months than anyone else in the history of New Zealand---and all at taxpayers' expense. I speak of the Leader of the Opposition...

So if---as the previous speaker did---we want to talk about small groups of financially well-backed individuals hijacking that kind of system we have the perfect example sitting on the Opposition benches. He has been using our money to hijack a petition system to get his political views through. That is one of the most difficult issues one has with any citizens-initiated referenda...

Citizens-initiated referenda do become captured by special-interest groups... That is the reason that we have to be careful. That is the reason that I am trying to make the argument against the binding side of the referenda...

If the referendum is to be binding, pretty firm limits must be set on the thresholds. I would hate to see thresholds in the American system, because only half of Americans bother registering, only half of registered Americans vote, and only half of registered Americans actually voted for the president. That is a half of a half of a half, which is one-eighth of Americans voting for the president. It would not be beyond the realms of possibility that, in a binding referendum, one-eighth of the population could force something on the seven-eighths that they may not want."

November 18, 2009 at 10:54 PM  
Blogger solatnz said...

@Chuck: I think Chris C and Dave have made good points, so I won't add much.

Throwing in a a little ad hominem attack regarding my age (27) adds no strength to your argument whatsoever.

I don't think MMP is perfect, never have, I just think it's far better than FPP or SM.

I happen to agree with you regarding a second house and a (written) constitution - we lack checks on the power of Parliament.

November 18, 2009 at 11:49 PM  
Blogger Chuck Bird said...

“Chuck, repeal doesn't do what I suspect you think it does.”

Dave, please elaborate. Repeal can mean whatever it defined to mean in any piece of legislation. I can see no point in arguing semantics. Larry has already pointed out that his petition is not in the form of legislation but is a call to seriously debate the issue of binding referenda in some circumstances.

My proposal would to follow the Swiss system. Legislation would not be enacted for 100 days. If a number of signatures were collected opposing the legislation were collected within the 100 days then there would be a referendum to decide if the legislation would proceed. I would suggest 50,000 signature requirement and a 60% majority to stop the legislation.

I am not trying say this would produce a perfect system as there is not such thing. However, I believe the average voter is as moral and as wise as the average MP on moral issues such as abortion, euthanasia and the drinking age.

November 19, 2009 at 5:54 PM  
Blogger Swimming said...

Dave, please elaborate

I did give you a link to click on. Like, isn't that elaboration?

November 19, 2009 at 6:20 PM  
Blogger Chuck Bird said...

"Ï did give you a link to click on. Like, isn't that elaboration?"


November 19, 2009 at 6:50 PM  
Blogger Chuck Bird said...

Solatnz, if you consider the “points” made by Chris C and Dave good I am probably wasting my time responding. Posting a link with little explanation is hardly a point. I clearly explained the type of legislation I proposed. His link did nothing to address it.

If we look at the point Chris raised about the low voter turn out we would not have MMP if we applied the same criteria. I was at a share holder’s meeting today and a number of issues were voted on. People had a choice to be present or vote by proxy. The same applies to any vote. If you chose not to exercise your right to vote you have no right to complain if the vote does not go your way.

I would hardly regard my comment about your age as an attack – just an observation. I read your blog after linking to your profile. With respect I think as you get older you will find that there is no perfect or near perfect system. I was a lot older than you when I voted for MMP. I was convinced that MMP would a lot better and fairer system. I think the older you get the more sceptical one gets – at least some of us do. Of course some people do not. Look at those who invested in one finance company and lost their money and put more in another.

I am glad you support a second house and a (written) constitution as a way of a check on power. Binding referenda are another way of address the issue. All have their pluses and minuses. CIR is not the only form of binding referenda any more than the existing MMP system is the only option.

I think it is foolish to dismiss all binding referenda except those organised by the government out of hand.

November 19, 2009 at 9:06 PM  
Blogger Chris said...


If we look at the point Chris raised about the low voter turn out we would not have MMP if we applied the same criteria. I was at a share holder’s meeting today and a number of issues were voted on. People had a choice to be present or vote by proxy. The same applies to any vote. If you chose not to exercise your right to vote you have no right to complain if the vote does not go your way.

That is, if you don't think there's a difference between the validity of a result from an 85% turnout, which was the result of the FPP/MMP runoff, and a 55% turnout, which was the result of the first, non-binding referendum - and a 56% turnout, which was what you had in Baldock's referendum.

If you don't think there is, and you think that it's okay that, as a result of low turnout, a law is forced on the majority by the vocal will of the minority, then I'd suggest that if you're a proponent of the March for Democracy, you really need to go back and learn exactly what democracy means before you gather up your placard and head on out.

From the example of the MMP referendum, if the vote is made binding you can be assured of turnout. But, if you're asking, then no, I don't think a a turnout of 85% and a majority of 8% should be enough to change the electoral system or to make a vote binding, especially not with questions as stupid and leading as the ones Baldock is crafting in his attempt to gather a base for the Kiwi Party.

But please, do continue to ignore Tony Ryall's points about someone with financial backing wasting a whole shitload of taxpayer's money on referendums trying to force a narrow agenda on people.

November 20, 2009 at 5:36 PM  
Blogger Chuck Bird said...

Chris, you are very selective with the facts and economical with the truth. Firstly, can you substantiate your claim about someone with financial backing wasting a whole shitload of taxpayer's money on referendums trying to force a narrow agenda on people?

I was involved with collecting signatures. To the best of my knowledge there was no big money behind this. I do not think either the ACT party or the Liberation Party are religious. While I do not think Larry’s question was hard to understand it could have been better. I think it should have just called for a repeal of Bradford’s bill. Now if you can produce evidence that someone with a lot of money was behind the petition please do so.

Secondly, most of the cost of the referendum and the low turnout was due to Helen Clark. There was plenty of time for the referendum to be held at the election. The reason it was was for party political reasons.

I have heard the nonsense before about multiplying one percentage by another. Can you name one country, state city, club or business that votes on that basis? Clubs and business require a quorum and adequate notice. However I have never heard of any organization requiring a quorum of 50%.

You say I should learn what democracy is. I say you should learn a little about statistics. There ware numerous polls on the issue. All showed the majority opposed physical parental correction being a criminal offence. Please show me someone experienced in statistics like David Farrar who would say that a good turn out like at an election would have given a much different result.

November 20, 2009 at 8:50 PM  
Blogger Chris said...

Well, the first thing is that I'll have to point out that it was Tony Ryall's comments about referena being hijacked. But in response to them costing more money...

Yes, I can substantiate: the last referendum cost $9m, and was created with a poorly formulated question that could only lead to a single reasonable answer. That's a waste of taxpayer's money. Any subsequent referendum on MMP will cost upward of $20m, even held at the next GE - in fact, according to the figures, the reason most people would stick with MMP would be that it'd cost far too much to have another experiment on the system of voting. NZ uses the most proportional of PR systems - Sainte-Lague calculation with list MPs - but it has the most diverse cooperative longstanding population base in the West. Nowhere else in the West do you have a situation like the Maori and Pakeha.

Secondly, without MMP, Act wouldn't have such powerful representation. It works all ways.

The march today is funded by Colin Craig, Auckland businessman, and is estimated to cost up to $450k.

Your Act funding comes from the taxpayer, as the system of PR allows Act extra funding for being a party with electorate representation. So if Act are involved, then because a proportion of their funding comes from the taxpayer, then taxpayer money will be funding this kind of activism.

What else? Oh, percentages of turnouts. Yes, in the UK there's an act that makes the results of any referendum void if the turnout is below 50%. In Denmark there's a similar principle, only the threshold is 40%. In Canada, it's 60%. You can look up the rest yourself.

Finally, I'm aware that polls are useful, thank you, and I'm very experienced in statistics. But polls aren't infallible - otherwise we could do away with expensive elections and just use the polls. You might be interested to know that responses to the polls, including the Curia polls for Family First and the UMR polls for the Greens, were heavily weighted depending on the wording for each poll and that the polls also predicted the result well outside of the error margins normally allowable.

You might be interested in this:

It shows how immensely confused people were on the bill; how wording was everything; and judging by your responses, people remain immensely confused about the law.

And I'll maintain that you have very little idea about what democracy entails and how the systems work around the world. If you did, then you wouldn't have made the fundamental errors you did up there, you would have known about referenda thresholds, you would have known that the polling on the issue was wrong about many things and was well outside of the error margins on all polls conducted, and you wouldn't be having this argument over what democracy entails.

As far as you're concerned, it entails rich businessmen and Larry Baldock and the Kiwi Party trying to push an agenda on NZ that boils down to: "immediate amendment of the law so that a parent correcting a child with a light smack will not be committing a criminal offence."

There's no need. They're not committing a criminal offence. The whole thing is predicated on ignorance and Baldock's agenda to create a Kiwi Party base from voter dissatisfaction. Guaranteed he'll be running this ticket in 2011.

November 21, 2009 at 2:18 PM  
Blogger Chuck Bird said...

Chris, I will not waste time responding to the first part of your post as you seems to ignore the points I raised. I will however, address your claim that a parent correcting a child with a light smack is not committing a criminal offence under this new law.

I will quote Jim Evans is emeritus professor of law at Auckland University.

Consider the following scene. Mother (seeing Johnny take a packet of sweets off the confectionery stand, as she waits in the supermarket queue): "Johnny, I have told you many times you can't do that. It is stealing." (She puts the sweets back.) Mother (after Johnny has taken the sweets again, when her attention was diverted): "Johnny, I have told you not to do that." (She puts the sweets back again.) Run this line as many times as you think mother's patience will stand. Mother (after Johnny has taken the sweets once more): "All right Johnny, I have warned you and warned you." (She smacks his hand.)

Here, there are plainly two purposes involved: a preventative purpose (to stop the thieving) and a corrective purpose (to prevent Johnny doing it again in the future). Which subsection prevails in this situation?

On a strict reading, subsection (2) does: for it says nothing in subsection (1) justifies the use of force for the purpose of correction. And Mother, we have to allow, did use force for the purpose of correction, even if that was not her only purpose.
It is possible that the courts might apply a dominant purpose approach to section 59, as they sometimes do in other similar situations involving mixed purposes. They might say that Parliament must have intended that the defence ceases to apply only when correction was the dominant purpose. That would mean that if prevention was the dominant purpose a defence would still be available.

I don't think that can be guaranteed. Further, even if this approach is taken, it is often going to be very difficult sorting out which was the dominant purpose. Mother had better hire a good lawyer.

In addition to this the Prime Minister has publicly stated that the law is a “dog’s breakfast”. I cannot find the quote but I am almost certain I heard him acknowledge that a smack for the purposes of correction is a technical assault. By technical assault I assume he means an assault where the police are highly unlike to charge a parent. Nonetheless it is still a criminal offence whether one is convicted, charged or just warned or questioned.

I probably would have collected thousands of signatures at a table on the footpath, at sporting events and door to door. I spoke to people of all ages, race and background. I spoke to school teachers, police offices, social workers as well as labours and the unemployed.

These people were not rocket scientists or professors of law but they knew how the law could affect them if not now but in the future.

Before you respond kindly find someone with a degree in law who supports you contention that a parent correcting a child with a light smack is not committing a criminal offence under this new law.

November 22, 2009 at 9:05 AM  
Blogger Swimming said...

There's no need. They're not committing a criminal offence.

Chris, you may want to elaborate on this because you are flat out wrong.

November 22, 2009 at 12:05 PM  

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