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My Binding Referenda Problem


Danyl Strype of Disintermedia discusses the paradoxical role of Binding Referenda proposals in the jerky evolution towards peer-to-peer political and economic systems which embody autonomy, decentralisation and scalability. 

In October, 2011, I had an interesting debate with a conservative Baby Boomer who had come down to Occupy Wellington to tell us off for making the place look messy. After we'd conversed for some time, it became clear that although our politics were very different, we shared at least one important concern in common: the lack of any effective way to keep elected governments accountable to the people who they supposedly represent, except to vote for someone else in the next election. 

Short of a snap election, we agreed, the NZ Parliament is an elected dictatorship, who can do pretty much anything they want. A second term government with almost no chance of winning a third term have almost nothing left to lose, and people with nothing to lose are dangerous people to have in positions of power. By the end of our conversation, he said he was now quite pleased that we were occupying Civic Square, and he hoped I would join him in supporting the campaign for Binding Refenda (BR).

I've written about my problems with BR on the Open Source Society's OpenChat email list, and in the PirateParty forums. Obviously, I agree with the sentiment about keeping elected government accountable to the people between elections. My main concern about BR (aside from being championed by people like former ACT MP Muriel Newman, founder of the neo-conservative lobby group NZ Centre for Political Research, and Hugh Barr, co-founder of the fearmongering Coastal Coalition) is that they tend to be raised as fix to the rare occasions when marginalised groups in our society get a decision in their favour. As such, they seem to include all the worst failings of majority-rule mobocracy, with none of the benefits of participatory democracy present in other proposals such as demarchy and federalism; face-to-face assemblies, recallable delegates, open policy creation and legislation drafting processes etc. 

The FAQ of BR advocates BetterDemocracy, includes the question:

>> What type of issues is it envisaged could be taken up by electors if they had Binding Referendums? <<

Better Democracy claim to be politically neutral, yet the issues they list in their answer are a 'dog whistle' aimed at socially conservative voters, especially among Baby Boomers, who are concerned about the gradual liberalisation and democratisation of society; availability of abortions, civil unions for queers, reduced defence of class and ethcic privilege, decriminalisation of prostitution, increasing calls for constitutional reform, acknowledgement of tangata whenua rights:

>> That's not for us to say, it's whatever New Zealanders think are important but some things come to mind such as Immigration, Euthanasia, Police numbers, Prostitution, the Privy Council, Government funding of minority groups etc etc. <<

A quick summary of some matters which advocates of BR have used as examples:

Foreshore and seabed: The courts decided that some coastal hapū/ iwi had a claim to proprietary rights over *specific areas* of foreshore and seabed, strong enough to be tested in a higher court. Populist FUD (Fear, Uncertainty, and Doubt) implied that Māori were collectively claiming exclusive ownership of *all* beaches (IMHO this FUD was aimed at protecting potential sea-bed mining for minerals and oil). Parliament pre-empted due process by legislating away the rights of those hapū/iwi to have their claims investigated and tested by the appropriate court. A later parliament restored a limited ability to test those property rights in court, and the FUD machine kicked in again. Notably, none of this legislation extinguished private ownership of beaches by pakeha farmers and bach owners, under "riparian rights" in their freehold title! 

Likely BR result: Pakeha majority votes to confiscate property from hapū/iwi and make it a public commons, thinking they are defending picnics on the beach. An outcome which is about as fair as a majority vote to nationalise any family's private land, and turn it into a public park.

Anti-child abuse bill: Parliament voted to give children the same legal rights as other people (and non-human animals under the Animal Welfare Act 1999) not to be assaulted, even by their parent or legal guardian. The final version of the law change reflected the need for parents to be allowed to use force to prevent children from harming themselves, or harming others, but not to impose "discipline" through instilling fear of being physically attacked.

Likely BR result (based on non-binding referendum): Children are reduced to chattel status, with their parents legally allowed to hit them in ways that they are not legally allowed to hit their dog or cat.

Minimum sentences and hard labour: I have unconditional sympathy for Nan Withers, the granny who was beaten in a menswear store just around the corner from where I grew up. That's why I'm not a fan of prisons. They are a hangover of thoroughly disproven theories that completely ignore the power of context in social behaviour (see the Stanford Prison Experiment). Even putting aside that only poor theives get imprisoned (rich ones become Prime Minister), they are also profoundly counterproductive. The last thing you want to do with people who are so ethically challenged, or pschologically broken, that they hurt other people, is to put them all in one place to further confuse and damage each other.

Likely BR result (based on non-binding referendum): Prisons would be pressured to further dehumanise people, and to keep them locked up long after they were ready to play a constructive role in free society.

Supreme Court: I'm not a big fan of the elitism of the existing legal system. The Church moved away from printing its documents exclusively in a dead language (Latin) centuries ago, you'd think Parliament could do the same with Law, since it has much more power in our day-to-day lives. Having said that, faced with a choice between the NZ State having its highest court in England, and out of reach of all but the richest citizens of NZ, and having it next to the Beehive, the choice seems pretty obvious. It was thanks to the Supreme Court's ruling against evidence collected illegally by the Police that most of those arrested in Operation 8 had their charges dropped, something I doubt would have been possible if that had to go to the Privy Council.

Likely BR result: Massive FUD campaign against the ability of local judiciary to understand the law at the highest level, or judge objectively, and massive public backlash against Supreme Court proposal, turns into Referendum to keep the Privy Council (although a clever question would have asked if the public supported creating the Supreme Court, but retaining the right to appeal its rulings to to Privy Council for a limited period, as a test of the system).

Smoking in public bars: Massive FUD campaign by Tobacco corporations and their various front groups; bar publicans, Libertarianz; and Peter Dunne (working with the WIN party) got some people concerned that not breathing in second-hand smoke, with all the attendant health risks, would be bad for their freedom. As it turned out the worst result was being able to smell people's farts and BO in the pub. 

Possible BR result: ban on smoking struck down as "anti-freedom". People who work in bars have to breath toxic smoke all through their shifts, and lots of people who were struggling to give up tobacco can't easily do so without having to be social recluses.

In the process of researching and writing this article, it occurs to me the problem in any of these cases is not, in itself, the ability of the public to vote directly on a complex issue. Rather, that giving a majority - any majority - the ability to make a yes/no vote on a subject, without participating in the process of researching the issues and framing the proposal, tends to favour entrenched power. I think it's also worth keeping in mind that our impressions of referenda have been strongly warped by the talkback-radio style of the debates around the non-binding referenda we've had. When left-liberal commentators, like some of my friends in the Greens, argue that referenda can only support conservative causes, I wonder if that includes the referenda (one binding) which brought in MMP, and gave them a fair chance of getting represented in parliament.

Having looked through BetterDemocracy's website in search of the examples above, I have to say I'm impressed by how much thought they've given to the various criticisms of BR which have emerged. It may be that with further development to integrate proposals that deal with the criticisms about participation in policy-making, I may yet come around to supporting a model under the name of Binding Referenda.


Danyl, you really should stop

Danyl, you really should stop referring to yourself in the third person.