1. Mrz. 2016

Radio National – RN
ABC-Net, Australia

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Dauer: 28 min. 30 sec.

Direct democracy in NZ and Switzerland:
Lessons for Australia

Australians are referendum reluctant. Only eight out of forty-four constitutional referendums have succeeded. In Switzerland, the population votes four times year, on about ten different direct demo­cracy initiatives. New Zealand referenda are not as regular but this week our kiwi cousins are voting on whether or not to keep the Union Jack in the top left hand side of their flag or replace it with graceful curving fern. As the Australian government ponders a plebiscite on gay marriage and a possible referendum on indi­ge­nous recognition, a look at what New Zealand and Switzerland can teach us about direct democracy.


Damien Carrick: Hi, Damien Carrick, welcome to the Law Report. Here in Australia we are referendum reluctant. Since Federation, only 8 out of 44 constitutional referendums have succeeded. And at a state level, refe­ren­dum questions have often been about less than burning issues, things like daylight saving. But is there a different way? Today we ask what can two small mountainous countries, both famous for their dairy products, teach us about direct democracy? Did you know that in Switzerland the population vote four times a year? On each occasion, they give the thumbs up or thumbs down to about 10 different direct democracy initiatives. And in New Zealand, referendums, well, they are not so regular, but there's one going on right now.

Referendum ad: In March 2016 the people of New Zealand have a unique opportunity to decide the future of our flag; either the silver fern flag or the current New Zealand flag. So let's have a look at the symbols …

Damien Carrick: On Thursday, round two of the New Zealand flag referendum gets underway. From the 3rd to 24th of the month, our Kiwi cousins will be able to cast postal votes on whether or not to keep the union jack in the top left-hand corner of their flag or replace it with a graceful curving fern. Here it is law professor Andrew Geddis from the University of Otago:

Andrew Geddis: The government has gone to the New Zealand people and asked them whether they want to change our national flag. They did so through a two-step process. So last year we voted on which alter­na­ti­ve option to our current flag we like the best. That then threw up an al­ternative, and so we are now having a postal referendum on whether we want to switch to that al­ternative or to keep our current flag.

Damien Carrick: This is actually a government initiated referendum, isn't it. It's very much a pet project of the Prime Minister John Key, isn't it.

Andrew Geddis: That's right.

John Key [archival]: I think the flag should represent modern-day New Zealand, and I don't think the current flag does. And I think in a world where we are trying to build overt signs of patriotism and national identity, it's very important.

Andrew Geddis: Part of it is that when he goes on the international stage, not infrequently he gets presented with an Australian flag instead of the New Zealand one because there's a superficial similarity between the two, and overseas folks sometimes mistake them. And he finds that probably personally a bit upsetting and he thinks it's not good for our nation, New Zealand, to be so easily mistaken for Australia. Because it is his project, that sparked a little bit of a backlash in that some of the electorate anyway view it as being an unnecessary referenda, a bit of a waste of money, and really just his vanity project. And at the moment it looks like the opinion polls are in favour of retaining. So most of the opinion polls have about a 2 to 1 split in favour of keeping the flag rather than changing to a new one. We'll just have to wait and see what the actual votes says.

Referendum ad: Help decide which flag we'll stand for and how we are represented to the world. Vote in the final referendum, 3rd to 24th of March, 2016.

Damien Carrick: What sorts of other government initiated referenda have there been in New Zealand?

Andrew Geddis: So government initiated referenda could be held on anything that the government wants to hold them on. They literally pass an act of Parliament is to say there will be a referenda on this topic. We are different to Australia in that we don't have to have referenda to change certain aspects of our society or our constitution. We don't have a written constitution like you guys do, there is no need to use a referenda for any particular purpose. So referenda are used when the government thinks that a matter is either so important that the New Zealand public should speak on it directly, and so for instance when we changed our electoral system, that was changed by a referenda vote. We then had a revote on that as to whether we were happy with the change and people stuck with it.

Damien Carrick: That's the proportional representation system that New Zealand has had for about 20 years almost.

Andrew Geddis: Exactly. So we adopted it 20 years ago as a result of a referenda. And then in 2011 there was a revote; 'Do you want to stick with it or would you like to change to something else?' And people said they were happy to stick with proportional representation. We've also had referenda votes on whether the length of Parliament should be extended from three years to four. The New Zealand public has consistently said no, don't want that, we like electing our politicians regularly. So things like that, large-scale fundamental changes to the constitutional order. They don't have to be made by referenda but the government feels that the people should be allowed to speak directly on them. Damien Carrick: It's interesting, you've also had referenda about slightly more marginal or niche issues, things like rules around the sale of alcohol, going back a few years now, but also things around whether or not to have compulsory superannuation. I think the two parties in the ruling coalition had diametrically opposed views on the matter so they thought, well, let's put it to the people.

Andrew Geddis: Right, so that's the other time that the government use referenda is where there is an issue that is either considered too hot for the government to handle, which is alcohol regulation. Back in the day that was something that caused such inflamed passions on both sides, the government said, whoa, we're it is getting out of the topic altogether, we'll let the people decide directly. And then in the late 1990s when our coalition government at that time did have, as you say, diametrically opposed policies on superannuation. Rather than fall to pieces over the issue, the parties agreed, well, we will put it to the people and let the people decide what should happen. So that was a way that the govern­ment ducked an issue or avoided having to deal with the problems within the coalition. But as I say, it's up to the government on any particular issue whether it thinks it's important enough to require referendum or not. There's no rules around when they have to use them, it's the government's call.

Damien Carrick: As you point out, we have in Australia a written con­sti­tution, it's pretty clear what the Parliament can and can't do and what con­stitutes a change to the Constitution requiring a constitutional re­fe­rendum. Having said that, our federal government is considering a ple­biscite on gay marriage in this country to gauge public opinion on the issue. Your Parliament actually passed legislation legalising gay mar­riage without a referendum. Was there a discussion about whether or not there should have been some kind of plebiscite or referendum on that issue?

Andrew Geddis: Some opponents of same-sex marriage did say, look, this should go to the people. But by and large it was felt that our Parliament now has 120 members, it's big enough and it's diverse enough to capture the range of opinions within society generally. So we've got fairly representative splits between Pakeha (Europeans) and Maori, we have openly gay and lesbian members of Parliament, quite high female representation, I think it's about 37%. So Parliament is able to capture the range of views of New Zealand society adequately to be able to deal with these sorts of issues. And so that's why we did things like legalise prostitution, we had same-sex marriage. Parliament has been felt able to deal with these high profile contentious social issues in a way that people regard as being legitimate.

Damien Carrick: Very interesting, another important issue here in Australia is whether and how we should recognise Indigenous people in our Federal Constitution, that would definitely require a constitutional referendum. New Zealand has the Treaty of Waitangi with its indigenous people. Is that…even though you don't have a written constitution, is that equivalent to constitutional recognition?

Andrew Geddis: Because New Zealand's Constitution is underwritten, it has been described as a customary constitution, things are done in a certain way because that's just widely accepted, how they ought to be done. The rules aren't written down in hard concrete form, 'you must do this', so with the Treaty of Waitangi it has become viewed as a part of our Constitution, our way of doing things simply because it is considered to be such an important document in the relationship between Maori and non-Maori, Pakeha, in our history. That said, from a legal point of view the Treaty of Waitangi actually has no special status. It's not actually a binding legal document, unless and until Parliament acknowledges it as such through legislation. So if Parliament includes the treaty in, say, the Health Act, that means everyone who is working in the health sector has to take account of the treaty because Parliament said they must. But if Parliament doesn't do that, then it is simply in the background of our Constitution operating as an acknowledged feature of importance, even though it is not legally binding.

Damien Carrick: So we are having this conversation over here about whether or not to recognise Indigenous people in our Constitution. How would Maori respond to a similar kind of referendum or plebiscite that addresses issues around their recognition at a national level?

Andrew Geddis: Well, part of it would depend on the details, what exactly is being proposed. Interestingly when it was suggested that the Treaty of Waitangi should be made a part of our Constitution, like a formal written constitution back in the late 1980s, Maori were actually opposed to that because at that time they believed that once you put the treaty into a written formal constitution, you then open it up to being changed. That view of things probably has changed since then, and I think there is much stronger support amongst Maori now to have some sort of formal recognition of the treaty within our law as being the foundational docu­ment for the country.

Damien Carrick: New Zealand, like Australia, recently signed up to the Transpacific Partnership, and there was I understand a lot of conver­sation about whether that decision to sign up should be put to the people, is it something of sufficient importance to be put to the people.

Andrew Geddis: Exactly, and with the Transpacific Partnership a lot of people say it's such a fundamental change to how New Zealand will be governed in the future that the people ought to be allowed to say whether they want it or not. Of course the government doesn't have to listen to those arguments, it has the power to sign up, it has decided to do so, and that's what's going to happen.

John Oliver [archival]: We've talked a lot about New Zealand on the show in the last couple of years, from their ridiculous Prime Minister John Key, to the public competition to design a new flag, featuring these actual en­tries. We talked about them so much we were going to have a mora­to­ri­um on discussing New Zealand on this show. Until this happened:

Journalist [archival]: Protests at Waitangi against the Transpacific Partnership reached climax today when economic development Minister Steven Joyce was hit in the face with a sex toy.

Journalist [archival]: Without the Prime Minister there was meant to be no drama, but then this…yes, that is what you think it is, Stephen Joyce hit with a sex toy.

John Oliver [archival]: I think my favourite part of that is his unruffled surprise at being hit in the face with a dildo.

Damien Carrick: That very funny piece from John Oliver, it speaks to the flag referendum, the debate over the Transpacific Partnership, and the incident that took place on Waitangi day. What does it say about New Zealand politics for you, Andrew Geddis?

Andrew Geddis: What I think it says is that New Zealand politics at the moment is in kind of a very funny space. We have a government that is still very, very popular, but at same time you've got a smaller minority of New Zealanders who are just unhappy with the way the government is working, but find that they are unable to do anything about it electorally. And so they are seeking ways to push their views outside of the voting channel. Of course throwing something at a Minister of State probably isn't the best way to try to make those views known, but it does show I think there is a growing frustration amongst those who don't like the way the country is running that they are unable to get the rest of the country to agree with them.

Damien Carrick: So far we've been speaking about government initiated referenda. In New Zealand you of course have citizen initiated referenda. How do they work?

Andrew Geddis: Citizen initiated referenda were introduced in the early 1990s, at the same time as we were debating whether to change our electoral system, and a cynical view is that they were put up as kind of a sop to the people saying, look, don't vote for this new electoral system, this very odd proportional representation, you've got this referenda process instead. It didn't work, we voted anyway, but the referenda system still exists. So what it means is if 10% of registered electors, which is in New Zealand about 300,000 people, signed a petition asking for a referenda votes to be held, then the government has to hold the referendum vote. And the referendum papers go out, everyone gets to say yes or no to the question that is asked. But the result of that referendum is then non-binding, it has absolutely no legal effect whatsoever. All that has to happen is that Parliament be told this was the result of the referendum. And so the government is then completely free to ignore the result if it so chooses, and in practice that's what happens. The government gets the result and says, well, thank you very much people of New Zealand, we will just do what we wanted to do anyway.

Damien Carrick: Indeed you had a big national conversation back in 2009 on whether or not parents should be able to smack their kids, and there was a plebiscite, there was a referendum on this issue.

Andrew Geddis: Parliament passed a law that took away a defence in the Crimes Act that allowed parents to smack their children as part of good parental correction. So if your child was naughty and you smacked them, the Crimes Act said that wasn't an assault. So once that defence was taken away, people were worried that police would arrest and charge parents just for disciplining their children. So there was a citizens initiated referenda petition circulated, they got enough signatures on it to trigger a referenda. And so we had a referenda vote on whether that law change was good or bad, did people support it or not.

Bev Adair [archival]: I'm Bev Adair, a Maori mum and nana of Ngapuhi descent. I'll be voting No in the upcoming referendum on the anti-smacking law. I've been a victim of a lifetime of abuse, but I know that a smack is not abuse. In fact I would have loved to have had a loving parent who correct me with a smack …

Simon Barnett [archival]: Hi there, I'm Simon Barnett, and a very proud dad of four beautiful girls. Now let me make it quite clear: I oppose child abuse in all its forms. But this law treats a smack on the bottom from a loving parent, with child abuse of the very worst kind, and it's put good parents raising law-abiding and responsible kids in the same category as rotten, abusive, nasty parents. Kiwi parents know the difference between a light smack and child abuse, and you know what? We should be given credit for this …

Andrew Geddis: And there was a turnout, just over 50%, 80% of people said they opposed that law change, that they thought it was a bad thing to take away that defence out of the criminal law. The government then said, well, that's all very interesting but we are not convinced, we think it's a good law change, and so the law remains on the books today.

Damien Carrick: So the result was completely ignored.

Andrew Geddis: Yes, it was completely ignored.

Damien Carrick: What other citizen initiated referenda have there been?

Andrew Geddis: We've only had a handful of them because it is so difficult to get one. Getting 10% of registered electors to sign a petition, and you only have a year to get those signatures in, is actually a very difficult thing to do. So there has been citizen initiated referenda on whether the number of firefighters should be reduced, should the size of the House of Representatives be dropped from 120 down to 99. There was a referenda on the justice system and whether there should be tougher sentences for violent offenders. The smacking referenda. And then just back in 2013 there was a referenda on whether the government's assets sales program when the government was selling off state owned energy companies, whether people supported that program or not.

Damien Carrick: Were the results of that referenda respected and implemented by the government?

Andrew Geddis: At the moment we have less firefighters than we did back when the referenda was held, despite people are saying they wanted the numbers to stay the same. We still have 120 members of Parliament, despite people voting to reduce the number. We have had tougher sentences on violent offenders, but then again so has Australia, so has the United Kingdom, so has the United States, that's happened across the Western world. Smacking is still illegal in New Zealand, despite voting for the law to be overturned. And the government assets sales program went through exactly as the government wanted, despite people voting against it.

Damien Carrick: What do you make of these citizen initiated referenda if they are totally non-binding?

Andrew Geddis: They are a waste of time. We've got the worst of both worlds, if you like. We've got a promise held out to people that if they spend all the time and effort getting something on the ballot that they will be able to change the world, and then the result means nothing. And so I think it's actually a big cynical joke on the voting public.

Damien Carrick: Professor Andrew Geddis from the University of Otago. I'm Damien Carrick and this is the Law Report on RN, Radio Australia, ABC News Radio and the ABC radio app, and of course available anytime, anywhere as a podcast. Referendums do occasionally take place in many countries; think Ireland's vote on marriage equality last year and the UK's upcoming plebiscite on EU membership. They are also quite common in some US states, especially California. But when it comes to referenda, the standout country is Switzerland. Andreas Gross is a political scientist and for 24 years he was a member of the Swiss Parliament. He says direct democracy is both a deeply entrenched and routine part of Swiss national life.

Andreas Gross: We vote normally four times a year on all three levels, as I say, federal, cantonal, and communal, and people decide on average four times a year among 10 issue questions, and what is very important also that the closer you come to the citizens, from the communal or the cantonal level, every expenditure is also put to the ballot. That means that the politicians can't decide above a certain minimum of money without the consent of the people. And this changes the culture of politics totally because politicians have to listen and have to take care of the wishes of the people much more carefully.

Damien Carrick: So at that local level it's about day-to-day finances of the canton or the municipality. At a national level, there have been all sorts of very interesting direct democracy issues. I understand Switzerland has voted on whether or not to join the United Nations. Going back a few years you were actually involved in a direct democracy initiative around whether or not Switzerland should dismantle its army, I think back in 1989. Can you tell me about that initiative and how it went?

Andreas Gross: I was involved in both issues you mentioned. In 1986 the Swiss government, the Parliament proposed to the people to join the United Nations, and then only 24% said yes and rejected the proposal. And more than 12 years later in the Parliament we had the idea that we should try to do this again. But the government did not have the courage to propose this. And then with a MP colleague I proposed to organise a civil society committee which launched initiatives. And in 2002 we voted again on joining the United Nations. And there this time it was accepted. That's a classical issue, that every referendum is sociologically a learning process, and sometimes it is not enough, but the learning process started and you can come back to the same issue 12, 15 years later, try again and succeed. It happened like this also with women's rights; the men rejected the women's voting rights in 1959, but in 1971 it was accepted. - Concerning the 'Switzerland without army' initiative, that was indeed one of my big engagements in the '80s, and we got after 10 years of campaign we got … in 1989, that was our break of our wall, we got more than 1 million of the votes, 36% of the electorate, and that was one of the most successful defeats in the history of the Swiss democracy because it changed totally the relation between citizen and army. Today we have less than half of the army we had at that time, and today in every restaurant you can say you are against and you can stay and you can eat, but 30 years ago you would have been thrown out of every coffee shop or every restaurant when you said that.

Damien Carrick: So even though the direct democracy initiative failed to change the law, it succeeded in changing the culture.

Andreas Gross: Exactly.

Damien Carrick: One of the direct democracy initiatives that we have heard about here in Australia is the 2009 referendum on whether or not Switzerland should ban the building of new minarets on mosques.

Journalist [archival]: … at the referendum, 2.6 million voters turned out, more than 57% of those voted in favour of the ban.

Man [archival]: I think we wouldn't be allowed to build our steeples in the Islamic world and I think that's the reason why we won't have excesses here.

Journalist [archival]: Of more than 100 mosques, only four have minarets, now there will be no more, and it will be written into the Constitution. Muslim leaders fear Switzerland is sending a message they are no longer welcome.

Man [archival]: We are frightened. And if the atmosphere continues to be like this and if the anti-Islamic hate increases, then the Muslims won't feel safe anymore.

Damien Carrick: Andreas Gross, this minaret referendum struck many outsiders as being divisively and polarising.

Andreas Gross: Yes, polarising is not an argument against it because you can say 'Switzerland without army' was also very polarising. But the point is I voted against the validity of this initiative in the Swiss Parliament because I'm convinced the human rights, how they are designed in the European Convention of Human Rights, is not a subject to majority vote. You can also say the basic rights of the people, of every citizen is not up to the vote by the majority. But in the Swiss constitution, and this is one of the shortcomings of the Swiss constitution, until today the relation between direct democracy and human rights is not very well established. That means, on the contrary to all other European states where the constitution is much younger, we have a constitution of 1848, and the notion of human rights as we have it today in Europe is a product of the Second World War, but the states could not protect the human rights of the people, of their citizens, and that's why today all European states acccept the protection of human rights by the Court of Human Rights in Strasbourg. And that's why it should not be possible that something which is protected by the convention is a subject of a national referendum. But formally we have not yet developed in the Constitution the right that for instance the Federal Court could say no or the Parliament could say no, and this mechanism is not yet established to prevent such roads to happen. And that's why since the national conservatives today are the biggest party in Switzerland, they launched in the last 20 years about six initiatives, one of them we have voted at the end of February where basic rights of a concerned group of people, in the case of the minarets for Muslims, was not respected, and that's why this is dangerous and this is discrediting for direct democracy and this is discrediting for the human rights. And that's why we should change that, but it needs constitutional change in Switzerland, and until now we could not manage to find the majority for this.

Damien Carrick: So following the 2009 referendum, which was successful, there has been an actual ban on the building of minarets in Switzerland.

Andreas Gross: When somebody would try now to build a minaret, perhaps even the Federal Court would allow it, although it is banned in the Constitution, because the Federal Court knows that when this person will go on to the Court of Human Rights in Strasbourg, he will be supported because it's also part of the freedom of every religion that you can express your religion in the way you want. So whenever you can build a church, also a minaret should be allowed. It is European rule and this can't be not respected for a member of the Council of Europe by national decision.

Damien Carrick: So, post 2009, have Muslim Swiss people brought actions to the court in Strasbourg asking …?

Andreas Gross: Until now nobody tried. You can't send the question abstractly to the court.

Damien Carrick: That suggests that the referendum was successful and it also changed the culture, because now people perhaps don't even try.

Andreas Gross: No, I would say it's another way around, it was successful mathematically, but juridical not possible to realise. We have not mathematically been successful but we changed the reality.

Damien Carrick: We talk about those checks and balances, about constitutional protections being at either the national level or the international level, the pan-European level. In the USA you have a lot of hot-button social issues, things like gay marriage, legalisation of cannabis, euthanasia. These issues are actually decided often at the state level by a direct democracy.

Andreas Gross: Yes, that's true, but in the United States there is constitutional protection of minorities, but it happens always after the vote. In California for instance they vote many times also on such crucial issues, and then always the court, those who lose the vote, they often address the state court, and the state court says in their rules if the majority in the referendum respected the state constitution, and then if you want you can also put it afterwards to the Supreme Court of the whole United States.

Damien Carrick: Speaking of the USA, often in California, a little bit I guess like the Swiss local level, they often have citizen initiated referenda on things like taxation. Nobody ever wants to vote for higher taxes, do they. It can change the debate and limit the policy options of government.

Andreas Gross: That's not really true because in Switzerland we vote always even at the value added taxes, the consumer tax, how much percent the federal government has the right to take from the consumer, its number is fixed in the Constitution, so when you want to change it, and we did change it, we did increase it 10 years ago from 6.0 % to 6.5 %. And we had once a finance minister 20 years ago who was able to convince the people that the tax on the gasoline has to be increased because of ideological reasons, and in order to finance ecological projects, and the Swiss majority voted for 10c more for a litre of gasoline. That shows when you have good arguments it's possible to convince the majority because in a direct democracy everything is open for the conversation, for the conviction process, for persuasion, but nobody can command anything.

Damien Carrick: Can you imagine Australian politicians trusting us with a vote about whether or not to increase the GST or dilute negative gearing? Political scientist and former Swiss parliamentarian Andreas Gross.

That's the Law Report for this week. A big thanks to producer Anita Barraud, and also technical producer Richard Girvan. Talk to you next week with more law.

Professor Andrew Geddis
Professor of Law, University of Otago, New Zealand
Andreas Gross
Political scientist and for 24 years was a member of the Swiss Parliament

Kontakt mit Andreas Gross

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