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Asking the people

22 Sep 2023

| Author: Chris Trotter

On 14 October, as New Zealanders are voting in their general election, Australians will be participating in an important referendum.

After more than two centuries of despoilation and neglect, the Aboriginal peoples of Australia are being offered a constitutionally guaranteed “Voice” in its government. The consensus among Australia’s pollsters is that the referendum will fail to secure the support needed to amend the Australian constitution – that the “Voice” will be silenced by what its advocates will doubtlessly condemn as “the tyranny of the majority”.

New Zealand progressives will, naturally, greet the defeat of the Voice referendum with dismay. But if, as everyone now expects, it is lost, then indigenous rights advocates on this side of the Tasman will become even more determined to resist any and every attempt to place fundamental constitutional reforms before the people for ratification by referendum. The fate of the Voice will float before them like an anti-Holy Grail. Proof that non-indigenous majorities are not to be trusted.

Their fears will not be unfounded if, on the same day as the fate of the Voice is decided in Australia, the ACT Party emerges from the New Zealand general election with sufficient parliamentary seats to force the National Party to accommodate the most important of its policies. At that moment, the determination of vital constitutional issues by way of referendum will become a live issue in New Zealand.

The ACT Party is proposing that defining Te Tiriti o Waitangi’s constitutional significance ceases to be the purview of judicial, academic and bureaucratic elites and, by means of open discussion and negotiation involving the whole nation, becomes irrevocably democratised.

Having translated the broad consensus of those discussions and negotiations into parliamentary legislation, the resulting codification of Te Tiriti’s meaning, purposes and powers would then be submitted to the New Zealand electorate for ratification in a binding referendum.

ACT’s intentions here are reasonable and, in light of the recommendations of the highly controversial  He Puapua report, entirely understandable. If, in the opinion of the expert authors of He Puapua, New Zealand’s obligations under the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) require the profound reconfiguration of its constitutional structures, then ACT is quite correct in insisting that such a transformation not be achieved through incremental legislation, bureaucratic fiat and/or judicial activism, but openly and democratically.

The ACT policy is also entirely congruent with New Zealanders’ historically and legally grounded expectation that any and all significant changes to the way their country is governed, or any significant expansion or curtailment of their rights as citizens, not be the handiwork of a single political party or coalition of parties temporarily in possession of a simple majority in the House of Representatives. In its view, it should be the product of either a parliamentary super-majority of 75% or by the active determination of the whole nation.


Unratified change

It is a matter of concern for convinced democrats that, of all the parties represented in Parliament, only the ACT Party has demonstrated anything like a proper understanding of its political obligations when alerted to the contents of a secret, government commissioned report recommending the steady implementation of profound constitutional changes – all unratified by referendum.

As the party responsible for commissioning He Puapua, Labour’s inaction in this regard is, at least, explicable. So, too, given their extreme ideological positioning vis-à-vis Te Tiriti, is that of the Greens and Te Pāti Māori. Less explicable, however, is the National Party’s failure.

Not only did the National Party fail to perceive the need to take a clear and practical stand on the constitutional challenge thrown down by He Puapua, but it still point-blank refuses to endorse and support ACT’s proposed remedy. Whether National’s refusal to back ACT is proof of constitutional ignorance, political cowardice or both is not clear. But, as New Zealand’s pre-eminent liberal-conservative party, National’s failure to be alarmed by the Labour government’s constitutional direction-of-travel is, itself, alarming.

At the heart of these difficulties lies the belief, held by those whose task it is to manage the evolving relationship between New Zealand’s indigenous and colonising peoples, that only a handful of their practices and policies could ever hope to secure majority support.

At the judicial, academic and senior bureaucratic levels, there has long been a deep suspicion of the Pakeha majority’s bona fides. By those required to apply the principles of Te Tiriti on behalf of the Crown, entrenched racist attitudes, operating individually and institutionally, are generally assumed to render constructive political dialogue on the “treaty relationship” impossible.

This fear of the Pakeha majority’s “racism” has contributed to the attitude – now widespread – that the treaty relationship must, perforce, be a relationship involving legal, bureaucratic, academic, political and ethnic elites. Since the relationship – driven by legal, cultural and demographic pressures – must continue to evolve, and since its evolution would likely be brought to a shuddering halt if subjected to a plebiscitary test, then the process must be kept within the boundaries of elite governance or, as a last and imperfect resort, representative democracy.


‘Extreme opinion’

Democratic objections to these elitist practices were met with terse counter-objections that local government referenda were repeatedly exploited by highly motivated Pakeha racists to thwart any and all attempts to empower local Māori minorities by creating Māori wards. This “weaponisation” of plebiscitary democracy was overcome only by the present Labour government passing amending legislation.

Representation based upon ethnicity, hitherto restricted to the House of Representatives’ Māori seats, thus secured another bridgehead. Elite opinion was far from outraged by the legislative promotion of Māori wards. Erecting protective walls against the intervention of what is generally accepted to be ingrained and irreversible Pakeha racism was seen as an unavoidable strategy for advancing a Crown-Māori relationship that continued to grow in complexity.

It was no less an elite luminary than Sir Geoffrey Palmer (whose State-Owned Enterprises Act first breathed legal life into “the principles of the Treaty of Waitangi”) who, as long ago as 2013, reassured  the Māori Law Review symposium on the Treaty of Waitangi and the constitution that: “Insulation from the ravages of extreme opinion has been achieved. The settlements have become mainstream.”

It is difficult to avoid the conclusion that this former prime minister and celebrated law professor understands “extreme opinion” and the “beliefs of the majority” share an uncomfortably close relationship. Missing from the elites’ analysis are the uncouth realities of democratic politics. Issues which engender strong and uncompromising feelings in large numbers of people – especially issues which strike at the heart of their moral understanding of the world – do not lend themselves to purely partisan resolution. Resolving these deeply divisive issues or, at the very least, persuading passionate antagonists to accept the judgment of the ballot-box pro tem, is much more easily achieved by a referendum.


Temperance referenda

Perhaps the best example of this calming effect were the referenda conducted alongside general elections for decades to decide whether New Zealanders would continue with the liquor trade as it was, turn it into a state monopoly or prohibit it altogether.

In the first two decades of the 20th century, the Women’s Christian Temperance Union (WCTU) mounted a powerful nationwide campaign in favour of prohibition – one that came within 10,000 votes of succeeding in April 1919. So passionate was the population about alcohol a century ago that successive governments thought it best to keep running the referendum right up until 1987!

Few New Zealanders realise that the successful campaign for women’s suffrage in New Zealand was driven not by radical feminist principles but by the desire to strengthen the forces in favour of prohibition.

Many progressives backed the WCTU’s campaign, as determined as were the battered wives and children, who bore the brunt of drunken male violence, to rescue the working-class from the scourge of alcoholism by giving its primary victims, women, the opportunity to vote it out of existence.

As the decades passed and the passions surrounding prohibition subsided, the three-yearly ballot lost much of its potency. By giving the whole electorate a say, the referenda not only got the political parties off the hook but also provided the most extreme prohibitionists with an incontrovertible measure of their waning influence.

The world-wide progressive movement of the late 19th and early 20th centuries strongly advocated for the referendum. In the United States, the movement not only championed “propositions” (referenda) but also “recall ballots”, permitting aggrieved citizens to recall representatives who were seen to be failing their electors.

It was only when the American Right started winning proposition ballots in the 1980s that the Left turned cold on the process. With the overthrow of Roe v Wade, however, the American Left has re-discovered the virtues of the referendum. Pro-choice ballots have now been carried in state after state.

New Zealanders’ strong attachment to straightforward majoritarian democracy, unencumbered by judicial intervention, upper houses or written constitutions, made them enthusiastic supporters of the referenda – an enthusiasm heightened whenever voters believe political parties are legislating rough-shod over their objections.

In this regard, the excesses of Roger Douglas and Ruth Richardson in the late-1980s and early1990s made possible the Citizens Initiated Referenda Act of 1993. What soured New Zealanders on the process was the National Party’s decision to make them non-binding. After a few unsuccessful attempts at kick-starting social and political change, voters concluded that the whole process was an expensive waste of time.


Reassuring voters

The approaching election has acquired a sharper-than-usual cutting edge by the widespread conviction that politicians and the news media are attempting to lead New Zealanders by the nose to conclusions they have not arrived at themselves, and with which they are by no means certain they concur. That these exogenous conclusions show every sign of informing dramatic changes to the way New Zealanders govern themselves is giving that electoral blade an even keener edge.

With a consensus rapidly forming among all the leading polling agencies that 14 October will produce a change of government, it behoves the political parties most likely to form it to reassure the voters who have just elected them that the failed promises and unwanted reforms of its predecessor form no part of its collective agenda. Voters want what they say to go where they want it – not where a bunch of condescending elitists and their political hand-puppets want it.

It is no accident that the slogan of the most devastating electoral campaign in this country’s political history was: “New Zealand the Way YOU want it.” Kiwi politicians ignore their fellow citizens’ visceral attachment to majoritarianism at their peril. By the same token, the progressive traditions underpinning New Zealand’s political culture should also not be discounted. Given the opportunity, New Zealanders might just surprise the world with what they are prepared to agree to – when asked.

If the National Party is apprehensive about the quality of any Te Tiriti definition ACT might put to a referendum, then why not take over the process itself?

Surely the party of Jim Bolger and Doug Graham, John Key and Chris Finlayson is capable of designing a process of constitutional reform in which all New Zealanders – Māori and non-Māori – feel able to make a contribution without being sneered at or abused. A process in which elite “experts” remain on tap – not on top.

A National Party willing to hold the ring for fresh new thinking about how best the majority can protect the rights of the minority and keep the powers of the state in check would be a National Party justifiably anticipating a very long period in office. As the votes are counted on both sides of the Tasman on the night of 14 October, some will seize upon the results as proof that Australia and New Zealand remain irredeemably racist societies.

Such a charge will be difficult to refute for a nation which has just voted “No” to giving its indigenous people a constitutional voice. It does not, however, need to apply to New Zealand. What happens here on 14 October could be the beginning of a free-wheeling constitutional conversation that astounds the world. ■


Chris Trotter has more than 30 years’ experience as a political commentator. He is the author of the Bowalley Road blog.

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