To the surprise of many of my friends, I voted against the Civil Union Bill in the final stages of the Parliamentary debate on that legislation, despite voting in favour of its first reading. And I did that not because I had suddenly become convinced that homosexual partnerships are inherently evil, or that allowing those partnerships to be formalised somehow threatens the institution of marriage, but rather because I have reached the view that major issues of that kind, touching on matters of fundamental importance to the social and moral fabric of our society, should be decided by the vote of all adult New Zealanders, and not just rushed through Parliament under urgency with a slim majority of Members of Parliament.
But what, I have been asked, constitutes a “major issue of that kind, touching on matters of fundamental importance to the social and moral fabric of our society”? Surely most of the issues decided every week in Parliament have some moral dimension? How much tax to levy, for example, or how much to spend on education compared with how much to spend on healthcare or superannuation? These are all profoundly moral questions, so how do I argue that some should be the subject of a referendum while others should not be?
I am also mindful of the famous comment by the great British Parliamentarian of the 18th century, Edmund Burke, that “your representative owes you not his industry only but his judgement; and he betrays, instead of serving, you if he sacrifices it to your opinion”.
But what makes issues such as prostitution law reform, the Civil Union Bill, euthanasia, the drinking age, and perhaps even the Property Relationships Act(which took what to me was the extraordinary step of deeming de facto couples to be married) different from the many other moral issues decided by Parliament every week is that the latter are usually either actions promised by the majority party in Parliament at a general election or are at least broadly consistent with the values and philosophy of the majority party. In that sense, the majority party can claim some kind of democratic mandate.
The other issues – prostitution law reform and all the rest – are not issues on which the major political parties have fought an election campaign. Nor are they issues on which most individual Members of Parliament have made their positions known before their election. And they are issues on which many of the public feel very strongly.
Am I using the proposal to have a referendum on these issues as a way of avoiding telling the public my own position, lest I lose some votes? Not at all. It is public knowledge that I voted for the Prostitution Reform Bill, not because I favour prostitution – on the contrary, I regard prostitution as a serious social evil – but rather because I regarded it as grossly hypocritical for it to be illegal for women to proffer sexual services for money, whereas it was not a criminal offence for men to offer money for sexual services. In voting against the Civil Union Bill, I made it clear that, in a referendum, I would vote in favour of allowing same sex couples to formalise their relationships, and noted that there is no Biblical record of Jesus ever talking about same-sex relationships, let alone condemning them. It is public knowledge that I voted for the bill which would have permitted voluntary euthanasia in strictly limited and controlled circumstances.
So no, I am not afraid of telling the New Zealand public my view on controversial issues. I am simply saying that my moral judgement, and that of other Parliamentarians, on these issues is no more important than the moral judgement of other New Zealanders, and that therefore these matters should be decided by referendum. We should not allow the social engineering of this Labour Government to be foisted onto New Zealand without giving voters an opportunity to accept or reject these changes.
But, it may be objected, there is a danger in handing over issues such as the legalisation of same-sex relationships to the general voting public in that the majority may use such power to suppress the rights of minorities. Would the citizens of Hitler’s Germany have passed a referendum to protect the rights of the Jews? Probably not.
But South Africans of European descent voted overwhelmingly to give black Africans the vote in the early 1990s; in 1951, at the height of the Cold War, Australian voters rejected a referendum proposal to give the federal Parliament power to legislate against the Communist Party; in California, a state senator launched a referendum campaign to prohibit homosexuals from teaching in public schools, and it was soundly defeated; and in New Zealand, polls taken during the Parliamentary debate on the Civil Union Bill suggested that a referendum on that issue would have passed reasonably comfortably.
So on balance I believe there is no greater risk that a referendum will result in the oppression of a minority than there is that Parliament itself will oppress that minority.
The National Party believes that we should also have binding referenda on matters of major constitutional significance. We argued that the Labour Government should not have cut New Zealand’s ties to the Privy Council – a court made up of some of the very best legal minds in the world – without getting such a decision ratified in a referendum.
We have promised to give New Zealanders an opportunity to vote on whether they wish to retain the MMP electoral system – an opportunity that most New Zealanders think they were promised back at the time that MMP was first introduced. That would inevitably be a referendum also on the number of Members of Parliament, since the MMP system requires something like 120 MPs, whereas several alternative systems would operate perfectly well with fewer.
We have also promised that, if in Government we reach the view that New Zealand’s best interests would be served by allowing nuclear-propelled ships to visit New Zealand ports, we would seek an electoral mandate for that, either by making a change in the law which currently bars visits by nuclear-propelled ships an explicit part of our manifesto for the subsequent election or by putting the matter to the public by way of referendum.
On the other hand, we do not envisage having a referendum on the abolition of the separate Maori electorates. Why? Because we have made a firm and unambiguous commitment to abolish those electorates when we become Government and winning the election will be a clear mandate to move ahead to a single electoral roll covering all New Zealanders, regardless of race.
What about moving to a much wider use of binding citizens-initiated referenda, as Voters Voice Action Group advocates, and as countries like Switzerland practise? Citizens-initiated referenda have a rather bad name in New Zealand at present, partly because they have on occasion been used for rather trivial issues (such as how many fire-fighters we need) and partly because the two most recent – dealing with the sentences meted out to criminals and the number of Members of Parliament – have been totally ignored by the Labour Government.
I am not myself yet ready to sign up in full support of binding citizens-initiated referenda, but I am certainly willing to debate their pros and cons.
Copyright © 2024 Don Brash.