Marcus Roberts
Auckland, December 2, 2023
If the first victim of war is truth, the first victims of coalition negotiations are controversial policies.
ACT’s policy to hold a Referendum on the principles of the Treaty of Waitangi was undoubtedly one of the most contentious of the election. ACT had promised to pass legislation defining the principles based upon the Māori version of Te Tiriti and then to hold a binding Referendum on whether that legislation should take effect.
This same process got the End of Life Choice Act 2019 voted in during 2020.
Very strong responses ensued. Labour MP Willie Jackson claimed that many Māori had told him that they would “go to war” over it.
National Party leader Christopher Luxon labelled the idea “divisive and unhelpful.”
Former Prime Minister Jim Bolger argued that “… Referendums are not there for calm and reasonable discussion.”
Referendum elsewhere
Fair enough. The recent Voice vote in Australia was claimed by many to have been divisive. And consider the very close 2016 Brexit Referendum. The fractiousness of that plebiscite can be seen in the difficulty the Conservative Government had in implementing it during the following years. Just look at the reaction to the return of that Referendum’s architect to the heart of the British Government.
But referenda do have intuitive appeal. Our government gains its legitimacy from the collective will of the people. Only it then makes decisions on our behalf. Referenda allow the electorate to make decisions, empowering the “people” who can be (or appear to be) often neglected.
Further, you could argue that a Referendum does not cause division; it merely lays it bare. Putting important issues to a public vote may indeed be divisive, but is it better than ignoring an issue?
Conversely, referenda can be blunt instruments. They often boil down complex issues into relatively simple yes or no questions. Moreover, parsing the results is difficult. Was there a no vote because a proposal went too far… or not far enough?
Then there is the problem of implementation. This danger is amply demonstrated by the years of wrangling that followed the Brexit Referendum. ACT’s approach of holding a Referendum on a specific piece of legislation sought to avoid this outcome.
A fundamental tension
Finally, and most intractably, referenda also reveal a fundamental tension at the heart of our democracy. Democracies rest on the belief that the majority’s wishes have more legitimacy than those of the minority.
However, without strong safeguards for minorities, which the majority cannot override, democracy devolves into mob rule. Call it the tyranny of the majority. These two ideas can be in tension and need to be brought to some balance in each democracy. Putting an issue that has an impact on a minority group into a Referendum, such as the principles of the Treaty, highlights this conflict.
Should the majority’s wishes prevail? If not, on what basis should the principles be determined, and by whom? It is no surprise, then, if ACT’s Referendum does not survive these negotiations.
However, the appeal of referenda will continue.
They are just too intuitively appealing to stay dead for long.
Marcus Roberts is Director of Research and Development of the Auckland-based Maxim Institute, an independent think tank working to promote the dignity of every person in New Zealand by standing for freedom, justice, compassion, and hope.
