Citizens Initiated Referendum
Pros and cons
PROs
CIR and Representative Democracy can coexist
Much debate on CIR implies either Representative democracy or CIR. This is a fallacy. CIR is
not a substitute for Representative democracy. Both can coexist. Representative democracy will
continue - augmented by CIR. (1)
CIR is a more direct form of democracy
Interest groups, party factions and elites have captured representative politicians. They no
longer represent the views of electors. Parliament comprises a narrower selection of
‘professional’ politicians with little experience of the lives of the people they represent.
CIR makes democracy more accessible to voters
MPs now have massive constituencies. Some, selected from party lists, are beholden to narrow
party agendas. CIR more correctly reflects the peoples will. It brings government closer to the
electors.
CIR allows issues to stand alone and be voted on exclusively
Voters might approve a party’s manifesto promises on the economic front but be appalled by its
stance on a particular issue. CIR allows the opportunity to crystallise an issue and permit a vote
squarely on that matter alone. CIR allows the electors to decide which matters will be legislated
and when.
CIR breaks major party collusion.
The popular will can be overridden in a two party democracy when both major parties conspire
for their own political purposes. For instance voters have been unable to express their wishes on
the Treaty of Waitangi. Parliamentarians and the courts have blithely effected their ambitions but
the voters have been shut out.
CIR overcomes the overweening influence of the bureaucracy
In many jurisdictions much law is the creature of the bureaucracy. Third generation bureaucrats
cozened in the capital hold greater influence on affairs than any backbencher. CIR allows law to
go directly to the statute book without bureaucratic frustration
CIR breaks the grip of elites
CIR allows voters to circumscribe the influence of this group and directly exercise their
sovereignty. (3)
CIR could place the people in control of “their” constitution
Parliament by the slimmest majority can change the constitution of New Zealand overnight.
Witness the new Supreme Court. CIR can place in the hands of the electorate the sole power to
change the constitution to reflect the desires of the people of New Zeland not that of the
legislatures.
CIR can control the vested interests of politicians
Legislatures and politicians have vested interest as a class which can cut across party lines.
They sometimes seek control for controls sake. They preserve not the rights of Parliament but
the narrow privileges of members as a class. CIR allows electors to step round this blockage
and exercise their will directly.
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Pros and cons
CIR places issues on the agenda
Even in not successful a CIR initiative places an issue before the people and as such it may gain
credence and credibility and eventually by force of reason or sense gained the acceptance of
legislators. CIR can incubate policy and ideas for the general discourse.
Cons Knowledge and Application
Legislators invest time and craft learning the intricacies of government structures creating
networks of advice and expertise among bureaucracies, citizens, interest groups and political
entities. They are accustomed to compromise, interfacing with citizens, understanding the
competing demands of constituencies and reconciling opposing demands on the state treasury.
CIR leads to Fiscal Irresponsibility.
Representative democracy does not guarantees fiscal responsibility. There are many instances
to the contrary. The gross fiscal irresponsibility of previous New Zealand Governments gives
notorious examples. . California is given as an instance. (9) To counter this danger the treasury
must be ring fenced from financial mandates, capping, hypothecation and percentage spending
edicts of referenda.
CIR is gives unbalanced one at a time law making
CIR presents propositions in a political vacuum. Cabinets in allocating resources to any
particular legislative endeavour must balance the requirements of the State against the other
opportunities and public priorities. CIR in proposing stand-alone laws tends to give citizens the
impression they can accede to this initiative without cost or competition from other demands and
requirements on fiscal opportunity and available resources. . Shrag (4)
CIR lacks the deliberative process
Laws passed by the parliament have been finely sieved. They pass through government
departments addressing discerned needs; party caucuses responding to member and public
demands for action. There are drafting constraints, select committees, official advice, ministerial
oversight, parliamentary committee processes. They run the gamut of parliamentary debate with
an opposition interested in exposing every government mistake. Deliberation is long and open to
intervention. In contrast CIR employs a media driven education process with none of the
deliberative processes or oppositional checks and balances.
CIR lacks Accountability.
Margaret Thatcher’s poll tax, Nordmeyer’s black budget, Muldoon’s think big, Canadian voters
reducing a major party from 142 members in the Commons to two. Representative democracy
allowed them to be hurled from office, losing power, prestige and income. CIR delivers no such
responsibility. Those who propose an initiative that becomes law can walk away from it. (5)
Representative Democracy means responsibility lies in an office
Each Act of parliament or decision of the legislature has a person or party responsible. They are
in the legislative chamber open to criticism. Open major areas of state spending or government
policy to decision by CIR and legislators get a free pass. They can game the public by pointing,
to tied budgets and slogan level policy handcuffs deflecting responsibility for failures.
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Pros and cons
Courage is possible
Courageous legislators can buck popular opinion, cease to mirror current politically trendy
fashions and with an eye to future dangers and opportunities strike out on an unpopular course
of action. (6) Under CIR leading the population to an unpopular but desirable end is not possible.
Stability
Legislatures are under the control of political parties with known agendas and political
philosophies. The citizenry have comfort there will be specific policy direction. In contrast CIR
has no cohesive direction with disparate and often opposing initiatives.
Parliamentary Sovereignty frustrates CIR.
Initiatives can be overridden by the current or subsequent parliaments. Referendums that seek
to bind the power of parliament run into a constitutional impasse. This may make citizens
initiative impossible in New Zealand’s parliamentary system. Much of the power and function of
the New Zealand parliament stems from usage and custom - crown prerogative an instance.
CIR will subvert the party system
Political parties perform a vital role in the parliamentary system. They are fountains of policy.
They effect parliamentary discipline, groom new members of the legislature and provide an
effective structure for the exercise of political power. If referenda prove to be a new way of
effecting political change and enacting legislation then the power of parties will be weakened.
CIR leads to poorly drafted law.
Poorly drafted law can be negated by court action. Much of the initiatives passed in California
are frustrated by endless litigation.
CIR may not be a valid exercise of the democratic will.
Referenda with a low turnout will produce a decision which is a majority of the small numbers of
voters who turned out but a small minority of voters as a whole.
CIR is dangerous in New Zealand’s unbounded political system.
CIR has its largest impact in the US and Switzerland. Supreme Courts guard the Federal and
State constitutions. Switzerland has a decentralised form of government with strong restraints on
the federal government. The powers of the Australian parliament are restrained by the
constitution. New Zealand would be the sole Westminster system to permit CIR initiatives
without the restraint of a written constitution, bicameral legislature, federal government system or
judicial review.
Uninformed prejudicial Majoritarianism
Some say CIR could deliver unbridled power to a tyrannous majority of incompetent voters who
would will take the opportunity to remove “protections” built into rights doctrine legislation such
as the bill of rights. This raises the argument as to the limits on the sovereignty of parliament and
as to whether there should be a power of judicial review to protect “minorities” under a more
powerful bill of rights. It even assumes that there is a limit as to what matters could be the
subject of a CIR initiative.
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Treaty of Waitangi limitation
Some assert that the Treaty of Waitangi precludes unbounded referenda as the principles and
partnership issue could not be resolved in a single electorate referenda. This might cut across
bicultural processes, tino rangatiratanga, the partnership between crown and Maori or the rights
of Tangata whenua.(9)
International law restraints
It is asserted by some that New Zealand has obligations under international law that no
referenda would have the power to circumvent.
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ACT Policy Proposal.
The core principle.
The ACT Party stands for freedom responsibility and choice. There can be a presumption
therefore that ACT supports the use of CIR. ACT has confidence that New Zealanders given the
freedom to make a choice on their law and will act responsibly.
The optimum policy is one that accentuates the positive contribution CIR could make to New
Zealand’s democratic process and also ameliorates the negative aspects of CIR.
This paper has set out the pros and cons and weighed benefit and disbenefit.
Policy
The Constitutional provisions of CIR
Amendment of the Constitution of New Zealand is to be solely achieved through
(A) a proposal initiated by the electors of New Zealand and passed by them by a
majority vote of not less than 60% of those voting in the referenda.
(B) A proposal initiated by the Legislature to amend the constitution will be
required to pass at a referenda electors of New Zealand and passed by them by a
majority vote of not less than 60% of those voting in the referenda.
The general provisions of CIR
ACT will legislate to provide that the electors of New Zealand may at any time initiate proposals
for the change of general law.
A proposal framed into ballot initiatives by the mechanisms set out in this paper and passed by a
60% majority of electors at a referenda will become the law of New Zealand
Savings
(1) Mindful of the danger of CIR initiatives becoming excercises in looting of the treasury by
special interest groups and populist spending proposals, tax limitations and other challenges to
budgetry probity ACT policy would restrict the use of CIR in the following ways.
Non sequestration of Budgeted funds.
No referenda would direct or mandate the spending of any proportion of funds on specific
objectives or portfolios nor cap any budgeted items nor sequester specific proportions of
public funds for specific proposes nor hypothecate specific taxes.
(2) To remedy the lack of a deliberative component of the CIR process ACT policy would provide
for all ballot initiatives to be
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

First debated by proponents and opponents of the Ballot initiative. Such debate to be
in the precincts of parliament.
Second the Legislature debate the merits and demerits of a ballot proposal by way of
general debate under the standards of a conscience vote. Members would not vote
on the proposal but express their view on its merits
Machinery provisions
All referenda will be held on the same day as a general election.
Process
1. Writing the text of the proposal - done privately with chosen legal or legislative counsel.
2. Submission to the Office of Attorney General of
 Text of proposal
 List of Official Proponents
 List of official circulators
 The Attorney General provide summary and title to the Clerk of the House
3. Treasury to supply statement of fiscal impact
4. Verification of signatures by Clerk of the House
5. Disclosure of financial contributions and expenditures
6. Initiative placed on ballot at next general election following the completion of filing
process
7. Certification by Returning Officer of New Zealand that petition has been passed/not
passed.
8. Law to be promulgated, signed by Governor General and take effect one month after
election.
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Pros and cons and ACT[‘s weighting of policy principles.
PROs
CIR and Representative Democracy can coexist
Much debate on CIR implies either Representative democracy or CIR. This is a fallacy. CIR is
not a substitute for Representative democracy. Both can coexist. Representative democracy will
continue - augmented by CIR. (1)
This is in accord with ACTs core principles of freedom choice and responsibility.
CIR is a more direct form of democracy
Interest groups, party factions and elites have captured representative politicians. They no
longer represent the views of electors. Parliament comprises a narrower selection of
‘professional’ politicians with little experience of the lives of the people they represent.
This is in accord with ACTs core principles of freedom choice and responsibility.
CIR makes democracy more accessible to voters
MPs now have massive constituencies. Some, selected from party lists, are beholden to narrow
party agendas. CIR more correctly reflects the peoples will. It brings government closer to the
electors. I
This is in accord with ACTs core principles of freedom choice and responsibility.
CIR allows issues to stand alone and be voted on exclusively
Voters might approve a party’s manifesto promises on the economic front but be appalled by its
stance on a particular issue. CIR allows the opportunity to crystallise an issue and permit a vote
squarely on that matter alone. CIR allows the electors to decide which matters will be legislated
and when.
This is in accord with ACTs core principles of freedom choice and responsibility.
CIR breaks major party collusion.
The popular will can be overridden in a two party democracy when both major parties conspire
for their own political purposes. For instance voters have been unable to express their wishes on
the Treaty of Waitangi. Parliamentarians and the courts have blithely effected their ambitions but
the voters have been shut out.
This is in accord with ACTs core principles of freedom choice and responsibility.
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Citizens Initiated Referendum
Pros and cons
CIR overcomes the overweening influence of the bureaucracy
In many jurisdictions much law is the creature of the bureaucracy. Third generation bureaucrats
cozened in the capital hold greater influence on affairs than any backbencher. CIR allows law to
go directly to the statute book without bureaucratic frustration
This is in accord with ACTs core principles of freedom choice and responsibility.
CIR breaks the grip of elites
CIR allows voters to circumscribe the influence of this group and directly exercise their
sovereignty. (3)
This is in accord with ACTs core principles of freedom choice and responsibility.
CIR could place the people in control of “their” constitution
Parliament by the slimmest majority can change the constitution of New Zealand overnight.
Witness the new Supreme Court. CIR can place in the hands of the electorate the sole power to
change the constitution to reflect the desires of the people of New Zeland not that of the
legislatures.
This is in accord with ACTs core principles of freedom choice and responsibility.
CIR can control the vested interests of politicians
Legislatures and politicians have vested interest as a class which can cut across party lines.
They sometimes seek control for controls sake. They preserve not the rights of Parliament but
the narrow privileges of members as a class. CIR allows electors to step round this blockage
and exercise their will directly.
This is in accord with ACTs core principles of freedom choice and responsibility.
CIR places issues on the agenda
Even in not successful a CIR initiative places an issue before the people and as such it may gain
credence and credibility and eventually by force of reason or sense gained the acceptance of
legislators. CIR can incubate policy and ideas for the general discourse.
This is in accord with ACTs core principles of freedom choice and responsibility.
Cons Knowledge and Application
Legislators invest time and craft learning the intricacies of government structures creating
networks of advice and expertise among bureaucracies, citizens, interest groups and political
entities. They are accustomed to compromise, interfacing with citizens, understanding the
competing demands of constituencies and reconciling opposing demands on the state treasury.
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ACT considers that as representative democracy will continue to be the main manner that
legislation is passed this will not be a “deal breaking” issue
CIR leads to Fiscal Irresponsibility.
Representative democracy does not guarantees fiscal responsibility. There are many instances
to the contrary. The gross fiscal irresponsibility of previous New Zealand Governments gives
notorious examples. . California is given as an instance. (9) To counter this danger the treasury
must be ring fenced from financial mandates, capping, hypothecation and percentage spending
edicts of referenda.
ACT policy will make special provisions to protect fiscal integrity
CIR is gives unbalanced one at a time law making
CIR presents propositions in a political vacuum. Cabinets in allocating resources to any
particular legislative endeavour must balance the requirements of the State against the other
opportunities and public priorities. CIR in proposing stand-alone laws tends to give citizens the
impression they can accede to this initiative without cost or competition from other demands and
requirements on fiscal opportunity and available resources. . Shrag (4)
ACT considers that as representative democracy will continue to be the main manner that
legislation is passed and this will not be a “deal breaking” issue
CIR lacks the deliberative process
Laws passed by the parliament have been finely sieved. They pass through government
departments addressing discerned needs; party caucuses responding to member and public
demands for action. There are drafting constraints, select committees, official advice, ministerial
oversight, parliamentary committee processes. They run the gamut of parliamentary debate with
an opposition interested in exposing every government mistake. Deliberation is long and open to
intervention. In contrast CIR employs a media driven education process with none of the
deliberative processes or oppositional checks and balances.
ACTs policy will make special provisions to ensure that CIR will have a deliberative aspect.
CIR lacks Accountability.
Margaret Thatcher’s poll tax, Nordmeyer’s black budget, Muldoon’s think big, Canadian voters
reducing a major party from 142 members in the Commons to two. Representative democracy
allowed them to be hurled from office, losing power, prestige and income. CIR delivers no such
responsibility. Those who propose an initiative that becomes law can walk away from it. (5)
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ACT believes that responsibility lies with the people. If they make a mistake they can remedy it.
Like legislators they will learn from mistakes
Representative Democracy means responsibility lies in an office
Each Act of parliament or decision of the legislature has a person or party responsible. They are
in the legislative chamber open to criticism. Open major areas of state spending or government
policy to decision by CIR and legislators get a free pass. They can game the public by pointing,
to tied budgets and slogan level policy handcuffs deflecting responsibility for failures.
Again ACT believes that responsibility lies with the people. If they take the burden of legislation
upon themselves then they must take the consequences
Courage is possible
Courageous legislators can buck popular opinion, cease to mirror current politically trendy
fashions and with an eye to future dangers and opportunities strike out on an unpopular course
of action. (6) Under CIR leading the population to an unpopular but desirable end is not possible.
ACT considers that as representative democracy will continue to be the main manner that
legislation ‘courage’ will continue to be possible.
Stability
Legislatures are under the control of political parties with known agendas and political
philosophies. The citizenry have comfort there will be specific policy direction. In contrast CIR
has no cohesive direction with disparate and often opposing initiatives.
ACTs considers that as representative democracy will continue to be the main manner that
legislation stability will remain an attainable goal.
Parliamentary Sovereignty frustrates CIR.
Initiatives can be overridden by the current or subsequent parliaments. Referendums that seek
to bind the power of parliament run into a constitutional impasse. This may make citizens
initiative impossible in New Zealand’s parliamentary system. Much of the power and function of
the New Zealand parliament stems from usage and custom - crown prerogative an instance.
ACTs policy will make special provisions to ensure that CIR will have a deliberative aspect.
CIR will subvert the party system
Political parties perform a vital role in the parliamentary system. They are fountains of policy.
They effect parliamentary discipline, groom new members of the legislature and provide an
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effective structure for the exercise of political power. If referenda prove to be a new way of
effecting political change and enacting legislation then the power of parties will be weakened.
ACTs believes this might be a good thing
CIR leads to poorly drafted law.
Poorly drafted law can be negated by court action. Much of the initiatives passed in California
are frustrated by endless litigation.
ACTs policy will make special provisions to ensure that CIR laws will be properly drafted.
CIR may not be a valid exercise of the democratic will.
Referenda with a low turnout will produce a decision which is a majority of the small numbers of
voters who turned out but a small minority of voters as a whole.
ACTs believes that responsibility for voting turnout lies with the people.
CIR is dangerous in New Zealand’s unbounded political system.
CIR has its largest impact in the US and Switzerland. Supreme Courts guard the Federal and
State constitutions. Switzerland has a decentralised form of government with strong restraints on
the federal government. The powers of the Australian parliament are restrained by the
constitution. New Zealand would be the sole Westminster system to permit CIR initiatives
without the restraint of a written constitution, bicameral legislature, federal government system or
judicial review.
ACT believes that the remedy for this defect lies in changes to the constitution. These will form
part of ACT’s constitutional policy.
Uninformed prejudicial Majoritarianism
Some say CIR could deliver unbridled power to a tyrannous majority of incompetent voters who
would will take the opportunity to remove “protections” built into rights doctrine legislation such
as the bill of rights. This raises the argument as to the limits on the sovereignty of parliament and
as to whether there should be a power of judicial review to protect “minorities” under a more
powerful bill of rights. It even assumes that there is a limit as to what matters could be the
subject of a CIR initiative.
Again ACTs believes under New Zealand’s tolerant political culture the majority afford
minorities every respect for their entitlements. If that culture should change no legislation
solution is possible whether using representative democracy or CIR.
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Treaty of Waitangi limitation
Some assert that the Treaty of Waitangi precludes unbounded referenda as the principles and
partnership issue could not be resolved in a single electorate referenda. This might cut across
bicultural processes, tino rangatiratanga, the partnership between crown and Maori or the rights
of Tangata whenua.(9)
ACT believes the treaty mandates no restraints on a democratically elected parliament, effects no
privilege for classes of voters and therefore cannot restrain the democratic wishes of the New
Zeland electorate as expressed in a CIR legislative procedure.
International law restraints
It is asserted by some that New Zealand has obligations under international law that no
referenda would have the power to circumvent.
ACT believes that there is no “International Law” per se. There are Treaty obligations freely
entered into by a free and sovereign New Zeland nation. The nation and its people can by
democratic choice exercise the right of a sovereign nation to suspend, cancel or take up treaty
obligations with international bodies or other countries.
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References
Direct Democracy: Good or Bad Alan Secrest; David Walker and Grover G Norquist. Campaigns
and elections August 1995 V16 N8 p47(2)
“Judicial Activism and the Death of the rule of Law”, Dyson Hayden Quadrant Magazine
January February 2003. (Australia)
Have Voter initiatives paralyzed the California Budget John G Matsusaka University of Southern
California and the Initiative and Referenda Institute.
The future of Freedom ,
Profiles in Courage
Illiberal Democracy at home and abroad Fareed Zakaria
John Fitzgerald Kennedy 1956
Initiative and Referendum: The People Law, Geoffrey de Q Walker CIS 1987 Australia
People Power Edited by Steve Baron and Jonathan Eisen 2004 Auckland Full Court Press
ISBN 0-9583681-4-7
People Power Edited by Steve Baron and Jonathan Eisen 2004 Auckland Full Court Press
ISBN 0-9583681-4-7
Citizens as legislators: Direct Democracy in the United States
Edited by Shaun Bowler, Todd Donovan, and Caroline J. Tolbert. Columbus. Ohio State
University ,Press1996
The Economist October 13 1990 v317 n7676 ps18 “Read the small print (Direct Democracy isn’t
working) Success and Excess: a Survey of California)
Paradise lost: California’s Experience, Americas Future Peter Schrag New York New Press
1998.
Sherman J Clark1999 Michigan Law Review
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Footnotes
(1) “Even in Switzerland the country which uses the initiative and referendum more than any
other country the bulk of enacted law emerges from the parliaments rather than the initiative
process.
5 Initiative and Referendum: The People Law, Geoffrey de Q Walker CIS 1987 Australia
(2) “They seldom listen to constituents let alone represent their views. The largest petitions are
ignored. “They are ignored in the sense they are not acted upon, but also in the sense that they
are not even listened to” p33 - 5 Initiative and Referendum: The People Law, Geoffrey de Q
Walker CIS 1987 Australia
(3) “This emerging self perpetuating class of people who belive themselves to be measurably
more intelligent than anyone else has come to be known as the New Class or the New Elite. In
terms of law making, its most significant characteristic is that it no longer instinctively believes in
majority rule, regarding the mass of population as selfish, closed-minded, irrational and stupid” D
Lebedoff, the new elite New York 1981
(4) Some argue that mandated spending directives under CIR made laws have placed minimal
demands on the budget of California (John G Matsusaka) but real damage has been done
(Fareed Zakaria and Peter Schrag). Californian expenditure has been capped, mandated for
specific allocations, made conditional on interest group requirements and hypothecated to a
prescriptive degree. Initiatives locked in 35% of the 2003 Californian budget. (9) Peter Schrag
notes “California’s Schools once among the nations best, now rank near the bottom. The States
gleaming highway system are crumbling – functional but hardly the model it once was”. Schrag
attributes these changes- this fall from grace—to narrow and selfish, market based, political and
social elite. “The device which in Schrag’s view has both encouraged and facilitated the growth
of this anticommunitarian ethic is the initiative. “, Initiative decision making however not only
disfavours careful and deliberative policymaking, it also severely inhibits, if not precludes, big
picture thinking.” (9) “At no time are voters, or their representatives, given an opportunity to
evaluate the relative importance, costs and benefits of the particular measures in a world of
limited resources and interconnected political realities.” “The plebiscite may not only bring our
the fool in all of us but the knave as well.”
The treasury must be ring fenced from financial mandate, capping, hypothecation and
percentages spending edicts of referenda.
(5) “ the democratic process leaves it open to the citizens as a whole, in periodical elections, to
bless or oppose the plans or decisions of particular parties or groups or clans of politicians.” (1)
Hayden).
(6) “This may mean that we must on occasion lead, inform, correct and sometimes ignore public
opinion for which we were elected. (4), John Fitzgerald Kennedy Under CIR this leading the
population to an unpopular but desirable end is not possible.
. (7) In the view of Peter Shore a Minister in the British parliament “We take the doctrine of
parliamentary sovereignty seriously as it expresses the sovereignty of the British people”
(8) “Even when passed many of the more contentious initiatives are challenged by armies of
high priced lawyers and end up in the Supreme Court which is often stuck with the thankless
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task of rewriting badly drafted laws already passed by the voters. “ Essay by Tolbert,
Lowenstein and Donovan Citizens as legislators: Direct Democracy in the United States
(9) Sir Kenneth Keith introduction to the Cabinet Manual
(10) The New Zealand form of direct Democracy: The Initiated Referenda ACT 1993 – LLM
paper of Stefan Bruns 2005
. (6) “This may mean that we must on occasion lead, inform, correct and sometimes ignore
public opinion for which we were elected. (4), John Fitzgerald Kennedy
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