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A Review of Last Night’s Boscawen, McCoskrie, Evans, Baldock Meeting UPDATED

September 8th, 2009 by Madeleine

Last night’s meeting with John Boscawen, Bob McCoskrie, Jim Evans and Larry Baldock on amending s59 of the Crimes Act to decriminalise the use of reasonable force for the purposes of parental correction was encouraging. The main themes I came away with from each speaker were:

John Boscawen - ACT Party MP
John Boscawen has not given up on his Bill and will use the time between now and 15 October 09, the date he expects his Bill to go to first reading, to rally support for it. He needs us to keep the issue live. So commenters, keep commenting; bloggers keep blogging. Everyone keep the pressure on the MP’s, especially the Nats  and everyone keep an eye out for public meetings as John travels around and turn up to them with friends – we want the media to be able to report that there are bums on seats everywhere he goes in support of this Bill.

Despite John Key’s refusal to act, keep in mind that MP’s feel political pressure, they are human beings, they are not immune to it.

Jim Evans - Emeritus Professor of Law at the University of Auckland
Professor Evans confirmed that the dominant purpose of any act of force in the course of parenting cannot be correction. He spoke of his concern for the danger to the rule of law caused by reliance on police discretion for acts that are clearly criminal. He said it might be one thing for the police to exercise discretion over issuing a traffic fine but when it comes to criminal acts it is not an adequate solution. If you have a situation where conduct that should not be criminal in fact is then the solution is not to just not prosecute but to change the law.

Highlighting Fitzgerald v Muldoon [1976] 2 NZLR 615 (NZSC) he spoke of the legal principle that required this contained in the Bill of Rights Act 1689, Article 1, which provides:

“That the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal.”

Essentially this means that only parliament can change the law and it must make a statute to do so. Professor Evans pointed out that being governed by discretion, as opposed to law, makes it impossible for one to stand on the law.

Bob McCoskrie – Family First
Bob spoke on research on the real causes of child abuse and called for more action on that.  Not one, even those done by the likes of UNICEF, CYFS and the Children’s Commissioner, cited smacking as a cause.  I support this research and action being done but not by government.

He also put up some excellent quotes:

John’s Key speaking on Radio Live on 4 Sept 09 at 11:40 am to Michael Laws:

“It’s a complete and utter dog’s breakfast – let’s acknowledge that”, that it’s badly drafted, “extremely vague”, and “we believe the Borrows amendment was the right place to settle.”

Hat tip: S59Blog, Voxy

[I won a chocolate bar at the meeting for knowing who said that - it was very nice]

Sue Bradford’s contradictory and confusing statements on the law;

Will ban smacking: “Greens draw up their own anti-smacking bill”

Won’t ban smacking:
Sue Bradford: “It won’t be legal but that won’t mean…
Barry Soper (interviewer): “So it’s banning smacking.”
Bradford: “No it’s not”

Smacking is banned: “Ms Bradford says parents need to accept that it is no longer legal to hit children.”

Smacking isn’t banned: “Smacking has never been a criminal offence, and still isn’t”

Smacking already banned: “it is already illegal to smack children but her bill removes a defence of reasonable force for the purpose of correction.” (March 2007)

There is no such law:
“There is no specific law relating to smacking on New Zealand’s statute books. People like Mr McCoskrie have fostered a myth that what has happened is that a new law has been created that specifically outlaws smacking. This is simply not true.”

Smacking bill won’t help: “The epidemic of child abuse and child violence in this country continues – sadly. My bill was never intended to solve that problem.” (National Radio – 21 Dec 07)

Sue Bradford attempts to explain the effect of the anti-smacking law to National Radio’s Sean Plunket (18 June 2009) – click here to listen [or read Dave Crampton's summary of the interview.]

Sue Bradford says it’s not a decision that should be left to the people – watch her on YouTube.

Hat tip: Vote No

A great one by former Labour Prime Minister Michael Moore (not the faux-documentary maker) in the Herald,

The expensive, puerile, futile controversy over the ill-considered anti-smacking legislation is a monument to political cowardice and opportunism.

Hat tip: Big News, Contra Celsum

[Many thanks to the readers who sent these quotes to me; I have had a very bad run with pain lately and sitting through the meeting on hard plastic chairs was really difficult and I was paying for it yesterday which is why I did not hunt them down myself.]

Larry Baldock – Kiwi Party
Larry spoke of his plans to promote another referendum; a non-binding referendum to ask the question “should Citizens Initiated Referenda seeking to amend or repeal a law be binding?’ He asked for people to sign up to help promote it, once it is approved by the Clerk of the House.

I did not sign up and will not help to promote it.

Direct democracy is a flawed concept. Legislating is a skill, it is not something that every person is capable of. This is why we must take care to elect skilled and capable and ethical people to parliament when we vote. We elect them to consider the issues, all of them and wisely legislate on our behalf. They should listen to the people but democracy is not mob rule, it is not and should not constitute bowing to the will of the majority. The majority can and have and continued to jump on the wrong bandwagons; the majority once supported slavery, circuses in Rome, they elected Hitler to power and in New Zealand if we held binding referenda today abortion on demand and the removal of the defence of provocation would fly through – positions that are wrong (see here and here respectively) that are held on the basis of knee-jerk emotionalism instead of reason.

Much philosophical literature has been written over the centuries against direct democracy.  If I have not convinced you, read some before you sign your name to Larry’s petition or agree to help promote it.

I agree with Larry’s frustrations, I agree there is a massive problem with our political system in New Zealand but the solution is that we need an upper house. An upper house vets legislation sent up by the lower house. It is typically elected by a different system so you get quite a different makeup. Essentially it means that all legislation gets a second look by skilled, knowledgeable eyes, gets re-debated, amended and tweaked before it becomes law. This is a far better safeguard that the option to call a binding referendum where only a vague conception can be communicated to parliament in the form of the referenda question to which one can only offer a yes or a no. A bill still has to be drafted in response to a binding referendum and who gets to write that or determine how much it is in line with the referenda question?

If Larry’s petition was a clearly worded call for an upper house I would be behind him completely.

UPDATE:
You Tube videos of the speakers are here.

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46 responses so far ↓

  • [...] should be binding. There was a meeting last night which regrettably I was unable to attend. Madeline did however. Larry spoke of his plans to promote another referendum; a non-binding referendum to ask a [...]

  • While the practicality of true direct democracy may be questionable, I think it wouldn’t hurt to move a few steps in that direction, the swiss seem to cope:
    http://en.wikipedia.org/wiki/Politics_of_Switzerland#Direct_democracy

  • Good call on not signing the petition.
    .-= My last blog-post ..Do we need two referenda? =-.

  • The issues you raise against direct democracy are all readily apparent in the form of government we currently have. I fail to see where the outcome would be worse. At least then the voters have made the choice themselves and have to live with the consequences, rather than having these same choices thrust upon them. Yes, the mob voted for Hitler, but who put him forward as head of the party? Who colluded with and supported his rule? Clearly he was supported by politicians in his party – and this was done through a form of indirect democracy which you are putting forward as the better option.

  • In my opinion, there are two related problems with direct democracy. The first is that a referendum is a binary choice, at least at the moment, though I’m aware we could rank choices. Lawmaking needs to be more than coming up with a proposal which might be anything from sagacious to hare-brained and then going to the people with a simple “Yes/No” choice about it.

    Which brings me to the second problem. Members of Parliament are paid to consider laws in detail, in light of the arguments for and against, Constitutional issues, etc., etc. I suspect that even if you ask someone who cares a lot about a particular law, he or she would say, “I can’t look up all the evidence and all the arguments, because I haven’t got the time and energy.” How much more so when the issue is one which people don’t particularly care about! Thus, it’s appropriate that lawmaking be done by professionals, so we have a greater chance of ironing out the details and coming up with a better law the first time.

    Having said that, I could see some merit in some kind of “disallowance by referendum” provision. I think Ireland has a mechanism wherein the President can, in certain circumstances, submit a law change to a binding referendum before it takes effect. That at least avoids the problem with citizens’ initiated legislation; either the law passed by Parliament stands, or at worst (or best, depending on your POV about the law change), it reverts back to how things were.

    Madeleine, I had wondered the same thing as Jim Evans, by the looks, though I’m by no means a lawyer (or even a law student). I suspect sub-section 59(4) may constitute “consent of Parliament” as far as the Bill of Rights is concerned, and thus even though in my opinion it’s a pretty serious abdication of responsibility by Parliament, it would probably pass muster in the courts. But I’d be interested in an opinion from someone who knows more than me on the subject. I might be tempted to look into it myself, except that I’d rather leave it to someone on the ground in NZ who has more connections, deeper pockets and more time than me.
    .-= My last blog-post ..D’oh! =-.

  • The more I think about this one the less faults I see with direct democracy. It seems to me that when a states heads off on some destructive course it’s usually its leaders who’re the ones working to motivate the population, rather than the other way around.
    The organisers of a referendum have every reason to get it right, rather than risk being shot down in flames by their critics over some minor fault in the wording.
    As to the quality of the people that seek and gain elected office, I think the results speak for themselves.

    “read some before you sign your name to Larry’s petition…”
    Read what exactly?

  • Baldock’s petition is set to be approved by the Clerk – see Big News.

    The intended wording is:

    “should Citizens Initiated Referenda seeking to amend or repeal a law be binding?”

    So, if successful, it will not permit creating a law.

    Still amendments are usually complex things – how they can be adequately conveyed in a single binary question is beyond me.

  • Madeleine, thanks for your summary of last evening.

    I will focus on Larry’s petition. We cannot be sure of its final form until the wording is approved. My understanding of it is that it will ask that referenda be binding to repeal or amend existing legislation. I am in favour of the first but opposed to the latter. Binding referenda to amend legislation seems to have many of the same drawbacks as binding referenda to initiate legislation. Wording is the main problem. There are other problems as well but instead of going into them I will refer the reader to

    http://www.maxim.org.nz/index.cfm/media/article?id=1930

    This is an audio by Richard Ekins, a lecturer in the Faculty of Law at Auckland University promoting the benefit of representative democracy.

    While I disagree with part of Larry’s petition I will be signing it and encouraging others to sign it although I will not be actively collecting signatures like I did for the petitions relating to the smacking issue. One of the reasons I will support Larry’s petition is that I do not think become law. However, I hope there will be enough signatures for it to be given serious consideration.

    I will now put a case for binding referenda to veto or approve certain legislation that could be best described as moral legislation. Under FPP there were some valid arguments for representative democracy. In theory an MP could risk his seat if he ignored his electorate. However, if the MP was in a very safe seat that was not a serious consideration.

    Until the previous Clark government there was not a lot of moral legislation passed and it was usually passed by a conscience vote. The last administration passed very much controversial and unpopular legislation and in the case of the anti-smacking legislation whipped its members to vote for it. Hopefully there will not be so much in the future.

    Madeleine gave a couple of examples where she thought the voters would get things wrong. I will give some examples where I think the collective wisdom of the voters was better than the collective wisdom of the MPs.

    The first example I would give is lowering the drinking age. I believe this would have been vetoed if the proposed law had to be ratified by way of referendum before it became law. Parliament is now likely to consider raising the age where older teenagers can buy alcohol to take away. I think the majority of the public would agree the lowering of the age was a mistake.

    A second example would be where the school councillors help underage girls obtain the pill without parent’s knowledge and if that fails they then help them obtain an abortion again without parent’s knowledge.

    Sexual intercourse under the age of 16 is still against the law despite the present leader of Labour having floated the idea of lowering it to 12. The Care Children’s Act supports school councillors arranging abortions for underage girls. I do not what to turn this into a general abortion debate but focus on parent’s rights. I am sure that if put to a referendum the law allowing abortions to be arranged without parent’s knowledge would be vetoed.

    The way I would see the right of veto working would be that legislation would not have to be vetoed very often before the legislators would realise that it might be advisable to listen to submitters at select committee hearings instead of going through the motions.

    Take Bradford’s bill. It originally was a private member’s bill but ended up being a government bill. If there was a right of veto I am sure the select committee would have made changes. The original excuse for the bill was that some juries may have come up with a wrong verdict. I do not want to re-litigate the cases here. However, to the best of my memory all the cases either involved an implement or a lasting mark or injury. Borrow’s amendment would have lowered the threshold so anyone who acted in a manner of the few who were successful under the old Section 59 would have been found guilty under Borrow’s amendment. Bradford might not have wanted compromise because she is an ideologue but I think there would have been enough pressure on her to do so. Helen Clark would not have wanted a rebuff from the voters.

    There should be limits on the legislation that can be vetoed. I originally thought it could be defined as legislation that is decided by a conscience vote. Unfortunately, the anti-smacking legislation was decided along party lines. Possibly legislation that starts as a private members bill could be included even if the change to a government bill.

    At present there is a large section of society that is not being represented – people who hold conservative or traditional values. Many of these are conservative Christians but by no means all. These people get no government support like militant feminists, homosexuals and racial minorities. The Labour Party has evolved into a very liberal party. National MPs have traditionally been more conservative. However, their leader is very liberal. He is also riding high in the polls due a very poor opposition. Not many National MPs would be prepared to challenge him on any issue.

    If the Green private members bill on homosexual adoption gets drawn I wonder if it will get shot down as quickly as Boscawen’s bill.

    I notice another poster favours referenda limited to just a veto. I am aware that no system is perfect. There is bound to be some downside to my proposal. I would be very interested to hear it.

  • Madeleine, I totally agree with your comments regarding amendments. I would be very interested to see if Larry has a draft amendment to alter referenda legislation.

    If his petition was changed to, “should Citizens Initiated Referenda seeking repeal a law be binding?”, would you think it worth consideration?

  • Madeleine, thanks for that update.

    AW, I offer the following regarding the Swiss system. (See first (ie latest) two comments):

    http://www.libertarianz.org.nz/soundbites/

  • Sus, the swiss may well be a nation of boring bankers, and they may well be over policed.

    Apparently you see a cause and effect relationship between these characteristics of Switzerland, and their use of binding referendum.
    Presumably you think that having binding referendum leads to wealthy, yet boring, bankers and more police.
    could you please explain this cause and effect relationship as it eludes me.

  • Oh, for goodness sake Andrew, those particular comments were tongue-in-cheek (the bit about the bankers anyway) as I’m sure you realised. I’m happy to give you the benefit of the doubt, anyway. However, any country that is enamoured with central control should be viewed with the utmost suspicion.

    The pertinent point (re the shortcomings of law-by-referendum) has already been made in those two short notes to Leighton Smith, but I’ll reiterate.

    Just because 80% of the voting population want to prevent people from cutting down trees on their property — or throw Jews in the oven — doesn’t make it right/moral/good law.

    But it ‘s technically “democratic” and an electoral system via binding referendums would have it that way.

    Tyranny of the majority or minority is still ignoring the rights of the *individual*. Why would you do that?

    Is it so unthinkable that we all politely mind our own business?

  • I’m pleased to have gone on the public record – including at this very blog no less – making the Key / Muldoon comparison using the very same case (Fitzgerald v Muldoon) before this meeting took place. :)

    Admin Note:And you have never studied law – well done. Of course for us law students its one of those cases you have to read for more than one course, I left a note regarding it on John Boscawen’s Facebook page prior to the meeting as well – though Key appears to be playing it smarter than Muldoon did. Madeleine ;-)

  • “any country that is enamoured with central control should be viewed with the utmost suspicion.”

    Is Switzerland enamoured with central control? It is a federal style democracy, and how is having binding referenda a form of central control?

    “Just because 80% of the voting population want to prevent people from cutting down trees on their property — or throw Jews in the oven — doesn’t make it right/moral/good law.”

    These sound more like the actions of power mad politicians than the electorate in general, oh wait, they are.

    “Tyranny of the majority or minority is still ignoring the rights of the *individual*. Why would you do that?”

    Have you actually come up with any ideas for a system that would be effective in stopping the tyranny of the majority? Often when this question is put to libertarians they start spouting about some sort of constitution that limits the power of politicians, ignoring the fact that in any democratic system a large enough majority can amend the constitution.

    “Is it so unthinkable that we all politely mind our own business?”

    Humans are social animals, our instincts to be part of a society run deep, those who yearn to have power over others, and those who’re happy to be ruled by others, will always be amongst us.

    For what it’s worth, here’s my suggestion on addressing the tyranny of the majority:
    http://www.kiwiblog.co.nz/2007/03/the_libertarian_debate.html#comment-292401

  • “Have you actually come up with any ideas for a system that would be effective in stopping the tyranny of the majority? ”

    Surely it is no objection to simply state that we could never *completely* eliminate the coercive power of society over the individual. But surely a step that reduces such tyranny is a good step, if we think such tyranny is bad.

  • It is common practice in much of the United States to make law by citizen initiated referenda. And the results are not pretty. Private parties capture the lawmaking agenda, with poorly informed majorities enacting propositions that are unwise and which do not fit well with other laws or commitments.

    A representative assembly, which has to argue in public about what laws to make and may then be removed at the next election, is much better placed than the electorate itself to legislate well, and also to legislate by way of a fair, public, and open process (which is consistent with political equality).

    Of course, our assembly – Parliament – sometimes acts badly. Voters have to demand that representatives explain their decisions in public and to be open to reasoned criticism.

    There are good reasons to make certain decisions – say whether to adopt MMP or whether NZ should become a state of Australia – contingent on the outcome of a referendum that Parliament puts to voters. However, it would be unwise to adopt referenda as some kind of general instituitonal solution to the possibility that Parliament will make bad decisions.

    Allowing a referendum to veto a particular statute would avoid some of the problems of citizen-initiated referenda, but it might often frustrate responsible government and permit parties who lost out in the legislative process (often quite reasonably, because they could not mount a convincing case) to try again.

    Everyone can think of laws that they think Parliament should not have enacted, which might not have been adopted if the electorate had been the direct lawmaker. But the reverse is true too and we disagree about which laws are which.

  • Dr Ekins, thankyou for stopping by. Parliament are just as capable of getting it wrong as the majority are; however, as you pointed out, unlike the majority there is at least some mechanism for holding them to account by way of select committees, the media, the blogosphere, elections and so on, even if these things seem somewhat weak options at times.

    As you know, modern democracies were a compromise between aristocracies and direct democracies; the two main options in ancient Greece. The concern with direct democracy was that opinion that was popular, ill thought out and prejudiced would dominate as the majority are not experts and not only have they typically not examined all the evidence and arguments, they are not capable of doing so adequately; like legislating, such analysis is a skill.

    This was Plato’s issue; he wanted ruling to be in the hands of the elite educated. Aristotle suggested a compromise; a group of wise and skilled people should be elected by the populace to make those decisions and the people could throw them out as a check on their power. This avoided the extremes and problems of other systems.

    We should be aware of and learn from history rather than being so determined to make the same mistakes. Further we should try to be people who vote wisely who understand that democracy does not mean that we have a government that will always give us what we want.

    So Chuck, in answer to your question, no I still would not support Larry’s petition as the concept of binding citizens initiated referenda is flawed even if limited in the way you suggest.

    .-= MandM’s last blog-post ..Contra Mundum: What’s Wrong with Imposing your Beliefs onto Others? =-.

  • (Dr?) Richard Ekins (your Auckland University Page may need up-dating), Points to short comings he sees in the CIR system used widely in local government in the US (Initiative and Referendum Provisions are used in 15 of the 20 largest cities).
    These shortcoming may be significant( though I couldn’t find evidence with a quick google).

    The point that’s been raised about the quality of legislation under the systems used in the US may be valid, but I don’t think that binding CIR should be dismissed as a workable system based just on the results of the US systems used, anymore than representative democracy should be dismissed on it’s failure in some countries.

    If we look at the Swiss system again “Often, parliament elaborates a counter-proposal to an initiative, leading to a multiple-choice referendum. Very few such initiatives pass the vote, but more often, the parliamentary counter proposal is approved.”

    http://en.wikipedia.org/wiki/Referendum#Switzerland

    This system would protect against poor quality legislation being enacted.

    Admin Note: This Auckland Faculty of Law page seems to be more up to date: Legal philosopher back full-time at Auckland.

  • “So Chuck, in answer to your question, no I still would not support Larry’s petition as the concept of binding citizens initiated referenda is flawed even if limited in the way you suggest.”

    Madeleine, would you please explain your reasoning.

    We have a private member’s bill to allow homosexual adoption in the ballot. Suppose the bill gets drawn and goes to a conscience vote and it gets passed by one vote. It is hard to gauge public opinion but let us say that 70% oppose it in the polls. Do you think that the average MP has more of conscience than you – I certainly do not?

    There was some justification for conscience votes under FPP but I cannot see how they can be justified under MMP. There are certain issues that the electorate should not be able to veto. The sale of rail would be an example. International trade deals would be another. Issues around AGW should be decided on science not by popular vote of the public or even popular vote of scientist as seems to be the case.

    Issues such as homosexual adoption, marriage, abortion and euthanasia cannot be determined by rational debate. When MPs are able to make a conscience vote the list MPs are under a lot pressure from very strong pressure groups within their party.

    As I stated earlier if MPs knew their legislation have to pass a second test they would take more notice of submitters so their legislation would not be vetoed.

  • Chuck I did give my reasons, I gave them in the original piece I wrote and in my comments above.

    Dimmocrazy I am interested in your term “a proper constitution.” By this do you mean the US model? I often find that many fail to appreciate the positives of our New Zealand Bill of Rights Act and wrongly assume that because it is just a statute that it has no teeth and that there are no other constitutional elements in play beyond it.

  • I think it’s difficult to have a debate about the values and mechanics of CIR without placing that in a constitutional context first. Also, remember that all representative and democratic system were ‘invented’ before the onset of the technology that is now available to disseminate information and collect opinion.
    I would advocate for a discussion on first principles, that looks at the need for a proper constitution and to consider legislative powers and mechanics, as well as matters such as separation of the branches, judicial organization etc, as a consequence of that. Only in that way can you have a principled debate that is not distorted by the idiosyncrasies of the current system.

  • A few quick thoughts.

    First, I don’t agree that rational argument is impossible on so-called moral issues (say abortion, etc.), but it is certainly hard to persuade most participants in such discussions to change their minds in response to reasoned argument.

    Second, it would be very tricky to determine which class of legislation should be vulnerable to veto by referendum (assuming that one thought referenda a useful device to correct the odd legislative blunder). The Australian position in which constitutional amendments are contingent on referenda strikes me as sensible, but then there is a clear category of such cases. Because of the nature of our constitution, it is harder for us to pick out constitutional changes that perhaps should likewise be subject – major electoral reform and perhaps any move to bind Parliament by judicially enforced limits – but after that it gets tricky.

    Third, I don’t think Key’s comments yet rise to suspending the Crimes Act (so this isn’t yet a Fitzgerald v Muldoon situation to my mind). Likewise, he isn’t suspending the CIR Act, because it lacks any formal ‘you must respond in this way’ provision. Some requirement to respond formally (tabling the government’s considered response in Parliament for example) would be useful. None of this means he’s acting well or responsibly, just that it isn’t unconstitutional in this specific way.

    Fourth, representative democracy is, as Madeleine suggests, a mixed form of government, incorporating elements of what the ancients thought democratic and aristocratic rule. Aristocratic here means rule by the best, not the wealthy or titled. Aristotle and Aquinas both thought this form of government offered the best prospect of securing the objects of government, namely the good of its members. And it does so, I’d say, in a way that is consistent with the equality of all citizens, each of whom (inter alia) may contest office, lobby lawmakers, and vote in elections.

  • “Have you actually come up with any ideas for a system that would be effective in stopping the tyranny of the majority?”

    Yes, And in the interests of not rehashing past commentary, it’s on the Libertarianz website. See FAQ.

    But I don’t know why you spurn the concept of a constitution that shackles the state, placing it rightly at the feet of its citizens, (rather than the head – where it rather likes to smack us routinely).

    Full protection of individual rights allows the individual to do whatever he likes, excepting those forceful and fraudulent actions that are rightly prohibited, eg murder, theft, fraud, etc.

    Conversely, the state is *prohibited* from doing anything except those actions it is required to do, eg protection of the individual via the police, justice and defence depts.

    I don’t believe I have the right to force my wishes upon you or vice versa – and yet your referendum-system would do that.

    NB: I’m not advocating any sort of Utopia — that’s impossible in that there will always be problems and issues that arise. But what do you have against freedom? Are you afraid of the responsibility that it naturally requires?

  • Madeleine, I fail to see how you have addressed my proposal of a veto. Wording is not an issue. I collected thousand of signatures and spoke to many people. I do not believe that people need even secondary education let alone a university degree to understand the issues involved in the anti-smacking legislation.

    A parent would have more knowledge of the issues involved in parenting than many well educated childless MPs.

    You have addressed the issue of initiating or amending legislation but not the right of veto.

  • Sus made the point for me, thanks. A real constitution shackles the state, and does so in unambiguous terms. The rest is mechanics. What we have now is a hide and seek system that means anything to everybody and in the end has no teeth.

  • Chuck I agree with you that on some issues, such as this current issue on parenting methods, the general populace probably does have sufficient knowledge of the issues to be in a place to make a sensible veto decision. [Though I should point out that simply because one has not personally experienced an issue does not render one incapable of forming a correct position on it – we oppose rape but we are not all past rape victims, we all oppose what Hitler did, were we there?] The problem is, like Dr Ekins said, finding a method of limiting or defining these types of issues is tricky; calling them moral issues is a problem because everything parliament legislates on is a moral issue. However, conceding that there are exceptions to the broadly stated principle that generally speaking it is better for those who are skilled in the art of legislating to be the legislators, does not render the principle flawed. Further it is not elitist like you seem to imply; it is like saying I can do a bit of DIY around my own home but when it comes to something tricky I recognise I need a professional. The problem is compounded when one attempts to set a blanket standard as to at what point and for what issues one should be leaving things to the professionals as people’s skill sets and understanding of their own limitations vary.

    Issues like homosexual adoption, marriage, abortion and euthanasia can be determined by rational debate or at least can be sensibly discussed by those who are trained in the philosophical and ethical arts [see the links to some of our pieces on abortion I included in the original text above]. Your claim that these subjects cannot be determined by rational debate and Dr Ekins observations of the polarised positions people generally take on such matters again simply highlights the need for such matters to be legislated on, where appropriate, by those who can engage in those arts in a rational and reasoned manner.

    I agree that there need to be checks on the power of Parliament. I agree that those we have in place in New Zealand probably do not go far enough which is why I support an upper house (and more care in voting). Like you pointed out, if MPs knew their legislation would be subject to a second test they would likely take more notice of public submission, the arguments and issues and more care in drafting so that their legislation would not be vetoed or tinkered with. An upper house would achieve this and would be a much stronger check than something as blunt as a referendum.
    .-= My last blog-post ..Recyling: Rawls on Religion and Public Life =-.

  • Sus, on the Libertarianz site there’s a paraphrasing of part of the US declaration of independence: “A constitution that recognises your unalienable rights to life, liberty, property and the pursuit of happiness is required to constrain the power of government.”

    And the US is a good place to start, I’d suggest that then principles in the US constitution are about as close to those required for a libertarian state that we’ve seen in modern history. Simple question: How far has the US moved away from those principles? I’d suggest a long way, because, no matter how the constitution is drawn up, it has to be able to be amended, and those amendments are going to be designed to shift the constitution towards whatever the electorates middle ground is, and human nature being what it is, this means that with increasing wealth in a democratic society, you’ll see increasing state largess, because such largess becomes more acceptable to the average voter with their own increased wealth.
    On the Kiwiblog thread I’ve suggested a political mechanism that might counter that trend (though I’m uncertain of it’s practicality). As far as I can see, your site offers no suggestions about such a mechanism.

    “But what do you have against freedom? Are you afraid of the responsibility that it naturally requires?”
    Not me, again you have to address fears and interests of the average voter.

  • Chuck, as Madeleine and Richard have pointed out, in fact, the debate about direct democracy v aristocracy has been going on for centuries; people like Aristotle, Aquinas and the US Founders adopted the mixed system we have at present for good reasons. It irks me when people decide to ignore or disregard thousands of years of mature, rational reflection on an issue solely on the grounds that some contemporary issue has ticked a whole lot of people off. (If you don’t know these arguments look them up.)

    To your points,

    Suppose the bill gets drawn and goes to a conscience vote and it gets passed by one vote. It is hard to gauge public opinion but let us say that 70% oppose it in the polls. Do you think that the average MP has more of conscience than you – I certainly do not?

    The issue is not whether politicians have more or less of a conscience than ordinary people, the issue is process. If a bill becomes law, there are numerous hours of select committee hearings where people, including experts on relevant issues, can appear before the committee and offer arguments, can be cross-examined, etc. The politicians are also supposed to read the detailed arguments for and against that are given in written form. After that, the bill is debated, amendments offered and debated, etc. The people who make the decisions should, if the electorate has elected responsibly, be fairly intelligent and capable people. A referendum, however, does not have this type of debate; the average person does not have time to canvas this material and information comes through channels such as state-owned TV, Campbell Live and Twitter.

    “There was some justification for conscience votes under FPP but I cannot see how they can be justified under MMP.”

    Here I disagree; to vote against one’s conscience is to vote for a position one is convinced is wrong. Clearly this is wrong. It is even more wrong to do so just because your colleagues are. This is the proverbial ‘jumping off a cliff’ argument that good parents regularly rehearse with their children.

    I am inclined to diagnose the problem in the other direction. We have too many politicians wanting to do what is popular to stay in power rather than what is correct and just. The classical model, where people elected an aristocracy whose job was to seek out what is just and good for all (rather than what was in the interests of their faction or party) is superior.

    “There are certain issues that the electorate should not be able to veto. The sale of rail would be an example. International trade deals would be another.”

    I would be interested to know what the distinction here is, why don’t the arguments you propose apply here as well?

    “Issues around AGW should be decided on science not by popular vote of the public or even popular vote of scientist as seems to be the case.”

    Here I disagree again, whether AGW occurs is a scientific question but how we should respond, if it does occur, is an ethical question; what the effects of various policies will be might be economic or sociological questions, etc.

    Issues such as homosexual adoption, marriage, abortion and euthanasia cannot be determined by rational debate.

    I disagree; I would not grant the premise that moral issues are simply irrational prejudices.

    “When MPs are able to make a conscience vote the list MPs are under a lot pressure from very strong pressure groups within their party.”

    I agree this is a problem but how does saying there is no justification for conscience votes under MMP solve this? I would rather myself see more scope given for conscience votes and more MP’s refusing to tow the party line when they disagree with it. A house where laws are decided individually by MP’s, on their individual merits, according to the considered judgment of each MP, seems to be better than what we have now or what you are suggesting.

    I’m inclined to suggest the concept of the political party itself is abandoned so that we have a house full of independents who might work with each other on an issue by issue basis.

    “As I stated earlier if MPs knew their legislation have to pass a second test they would take more notice of submitters so their legislation would not be vetoed.”

    Well the assumption here is that politicians should take notice of submitters. I think it depends on the merits of the submission; if the submitter presents a good argument then that might be a valid point but just because a large number of people affirm an opinion does not provide anyone with a good reason for supporting it. Refusing to support something you are convinced is correct out of fear of being unpopular seems to me to be something we should not encourage.

    .-= My last blog-post ..Recyling: Rawls on Religion and Public Life =-.

  • Sounds like your stuck in your jurisprudence class, Madeleine. Try to get out of that box for a second and think about how you feel about your own moral responsibility for your own decisions, without someone else providing your framework, criteria and standards for you. Then go back and think about the role of the state again.

  • Chuck wrote, “Mr Key has treated the voters and specifically parents with contempt. For all intends and purposes he has effectively repealed the CIR Act.”

    This comment seems to consist of, ‘John Key has ignored a referenda for a cause which we both think was correct so we need binding ones.’

    That seems to me to be a problematic argument. Suppose someone singled out an unpopular minority group like, say, the exclusive brethren, and had referendum on whether their sect should be legally tolerated. Imagine that this was done in the context of a media campaign whipping up fear about this group. If this happened, I would hope and expect any decent politician to ignore the result.

    However, on the issue of parental correction I think that Key should not have ignored the result but not because 88% supported a change but because I think there were clearly problems with the law that Key himself acknowledges and because those who supported it failed to make their case; certainly Bradford did not provide a coherent or consistent position.

    Even if you switch to a binding CIR model you will find that on some issues really bad laws get passed; as Madeleine said, the majority are not always right (and frequently are wrong). The fact you may have got a better vote on this one issue is immaterial as you are talking about a broader policy.

    .-= My last blog-post ..Recyling: Rawls on Religion and Public Life =-.

  • Sounds like your stuck in your jurisprudence class, Madeleine. Try to get out of that box for a second and think about how you feel about your own moral responsibility for your own decisions, without someone else providing your framework, criteria and standards for you. Then go back and think about the role of the state again.

    This seems to express a mistaken concept of moral autonomy. Do you really think a person can make sensible ethical decisions or gain any insights at all if they do not consider carefully the arguments of other people?

    A person who studies an issue, thinks through the arguments, listens to the opinions of others they respect and comes to an opinion in light of all this is exercising responsible, rational, moral autonomy. A person who ignores this and simply asks “how do I feel,” without examining the facts, is hardly utilising a commendable type of autonomy.

    .-= My last blog-post ..Recyling: Rawls on Religion and Public Life =-.

  • Madeleine, I agree determining which issues are moral issues could be problematic but not insurmountable. They could be limited to votes that start off as conscience votes as did the smacking legislation. Richard pointed out at his lecture that the government could make them government bills. However, most governments would not want to whip their MPs to vote a certain way on abortion or euthanasia as well as a few other issues. Philosophers can amuse themselves debating these issues but I doubt such arguments would change the way one MP voted. But pressure from a militant lobby groups could.

    Now, I am not opposed to an Upper House. That might be an alternative solution but how difficult would it be to implement and how much would it cost?

    I have heard the argument before that all legislation is a moral issue but nearly all legislation is voted on along party lines. Most moral issues are voted as conscience votes.

    Key told us there would be no more nanny state. If that is true there should be very few votes that are decided by a conscience vote. Therefore there would be few referenda. If most were held with the general election the cost would be a lot less than an Upper House.

    Having a Constitution as a means to challenge unpopular legislation is another option but also has it drawbacks.

    Richard suggested at his lecture for some requirement by government to seriously consider a successful referendum.

    I believe all these options are worthy of serious consideration.

    Mr Key has treated the voters and specifically parents with contempt. For all intends and purposes he has effectively repealed the CIR Act. I wish Larry luck but I very much doubt if he will get 100,000 signatures. I would be very surprised if anyone ever has a successful petition for a referendum.

  • Matt, with all due respect you are starting to sound like Leighton Smith on his criticism of MMP. He thinks MMP is all bad but fails to recognise and pluses. MMP and FPP both have pluses and minuses. The same applies representative democracy versus direct democracy. No system is perfect. That is what the debate is about – the pros and cons of both systems.

    You mention people like Aristotle and Aquinas. They had not heard of Google. Modern technology affects politics. The ordinary person can look up Hansard. You also mention the US founders. Well the US has binding referenda. Sure it has its faults as Richard pointed out at his lecture. I accept many of them but it also has its place on some issues.

    I do not know you position on binding referenda for the voting system. Most people support this. Many people do not know yet how the current MPP system works let alone how other systems work including me. Many of the younger voters will not remember how FPP worked. The issues are very involved and there are pros and cons with each system.

    On a murder trial ordinary people judge whether someone will go to jail for life. The evidence and the rules of law as explained by a judge can be very complex.

    Can you please explain why ordinary people are competent enough to make a decision on a voting system that may last their lifetime and decide on a person’s fate yet not competent to reject a law allowing homosexual adoption is they so choose?

    On issues such as these I maintain the collective wisdom on all the voters is greater than the collective wisdom of 123 MPs.

    You say

    “Mr Key has treated the voters and specifically parents with contempt. For all intends and purposes he has effectively repealed the CIR Act.”

    This comment seems to consist of. John Key has ignored a referenda for I cause which we both think was correct so we need binding ones.

    There is more to it than that. For a start Key undermined the referendum by discouraging people from voting. He has based his decision on what is good for Mr Key and the National Party. He flip-flopped on this issue due National’s internal polling. He targeted swinging voters and found what issue could swing their vote. He worked out he may lose some female voters to the left on the smacking issue. Those unhappy with his present position will vote ACT which does not concern him. That is when he came up with his so called compromise. When Boscawen’s bill was drawn he did not even discuss it with his corcus. I doubt is there will ever be another petition collecting the required signatures.

    The politicians are also supposed to have read the detailed arguments for and against that are made in written form. After that the bill is debated several times etc, and the people who make the decisions should (if the electorate has behaved responsibly) be fairly intelligent people.

    That is how it is meant to work in theory. Do you believe it does?

    Take the homosexual adoption issue. The MPs would listen to all the so called evidence from both sides. Both sides would cherry pick cases to show good or ban outcomes for the children. 95% of the MPs including the Prime Minister would already have made up their minds and would not really listen to the evidence.

    Sorry if I have not addressed all you points but I think I have covered the main ones.

  • Well, why don’t you ask your beloved John Boscowen why he and the 4 other ACTors voted for hasty legislation, to distort NZ’s financial landscape without any consultation the other day?

    I think outlawing ‘Urgency’ might be more urgent, not to mention quicker and easier, than having a second house.
    .-= My last blog-post ..Government and Parliament Bypass Consultation on Deposit Guarantee Scheme =-.

    Admin note: “beloved” !?!?

  • “:Well, why don’t you ask your beloved John Boscowen why he and the 4 other ACTors voted for hasty legislation, to distort NZ’s financial landscape without any consultation the other day?”

    David, why do you not try to keep on topic?

  • There is a place for urgency, I am yet to be convinced that we should get rid of it. I do agree that it seems to get abused a lot and that it should be held back for matters of urgency only. However, its removal would not achieve what having a second chamber could and then what would we do if we actually needed something passed urgently?

    I do not know enough about the Deposit Guarantee Scheme to understand whether I should share your outrage at its passage. Though I probably agree with you that it did not meet the standard to justify it being passed under urgency. But like Chuck said, this is somewhat off-topic.

    Having a second chamber is not about making things quicker or easier it is about process, checks and balances to limit the passage of bad laws. If parliament is intent on passing a bad law then one would hope that something existed that could slow that action down and made it harder. Of the options that can arguably deliver another level of critique to what gets passed into law, I believe an upper house is the best option.
    .-= My last blog-post ..Recyling: Rawls on Religion and Public Life =-.

  • @ Matt, we disagree, that’s obvious. I don’t accept your definition or approach to moral autonomy, nor the way by which you qualify someone’s concept of it. Moral decisions are not about the argument of others, they are about the effect of one’s actions on others.

  • Some might find Jim Evans interviewed by Leighton Smith about the anti-smacking legislation and why he thinks Mr Key is not right in trying to tell the police how to use their discretion. I hope I have not misinterpreted his view.

    http://equipbiz.co.nz/s59/Jim-Evans.mp3

  • There seems to be two issues here:
    1. constitutional protections, and
    2. Mechanics of enacting and repealing legislation

    1. could or should involve
    a) enumeration of powers, and limitation to enumerated powers of the state
    b) a bill of rights
    c) separation of powers

    2. could or should involve
    a) making legislation difficult to enact and easy to repeal, e.g. sunset clauses, consultation, consent of legislative bodies and a president and referenda to enact, and perhaps multiple avenues for repeal or disallowance.
    b) localisation, e.g. make the local governments the primary level of government, and make the central government a federal government, with rights of local governments to nullify federal laws, interpose to protect locals, and leave the union.
    c) quantative restrictions on government, e.g. limiting governemnt debt and/or capping real per capita government spending.

    New Zealand’s constitution is faulty on several of the above measures. Highly centralised, no limits on central government power, too easy to pass legislation, no alternative avenues to repeal or nullify legislation, no constitutional protection of rights to property or firearms, high taxes and government spending.
    .-= My last blog-post ..Government and Parliament Bypass Consultation on Deposit Guarantee Scheme =-.

  • The Boscowen amendment is barely any better than Ulrike Bradford’s law. First, any serious correction of a child, by definition, will not be “transitory and trifling”, will be inflicted by an implement, and by definition is cruel and degrading. That’s the whole damn POINT of disciplining kids.

    Second, and much more serious from a Libertarian point of view, so long as there are criteria constraining good parents in the law – and it doesn’t matter what those criteria are – then the Police and CYFS, right down to citizens advice or the manager of the local supermarket – are recruited into a nanny state network for parents in NZ. For example, say my son was whinging about wanting some “Forbidden Fruit” lollies in the supermarket aisle, and I grabbed the rolled-up Listener and flicked him on the ear. Well that might be trifiling, but it wasn’t transitory, used an implement, and was in public, so therefor Ulrike Bradford – or any court, or social worker – would conclude this was degrading. No difference to Ulrike’s law – if anything: worse.

    The solution is simple – put the law back to the Common law. DIsciplining a child should be an *absolute* defense to common assault – and no defense at all to grievous bodily harm or sexual assault.

    Oh – and if you’re going to amend the education act, at least do it properly: remove the whole prohibition clause!

  • The problem with NZ’s democracy is an easier one to solve.

    The problem isn’t the constitution, it’s the franchise.

    Tyranny of the majority or minority is still ignoring the rights of the *individual*. Why would you do that?

    I don’t care about “individuals” or their “rights” – the idea of an “individual” is fundamentally a leftist idea from the French revolution. Most “individuals” do not deserve “rights” – including the right to vote or to legislate or to veto legislation.

    The solution is to return to some form of taxpayer franchise, or a franchise restricted to the productive members of society. The idea of a universal franchise is really very new – and arguably disastrous both for nation states and personal liberty (again, of the productive).

    Give each household one vote per say 100K USD worldwide income, and 1M USD property. Households will less than that don’t get to vote. This simple prescription would fix almost every problem in NZ or other “Western” societies in a single electoral cycle.

  • [...] I attended a public meeting in support of John Boscawen’s Bill to restore the right of parents to use reasonable force for the purposes of correction in the [...]

  • The Saga Continues……

    Madeleine Flanagan wrote on the blog, MandM about the meeting, and gives a short rundown on what each of the speakers said, as well as reminding us of the difficulty Sue Bradford apparently has with everyday, ordinary plainspeaking language. She doesn…

  • Hitler was not elected. His party never got more than 37% of the vote, and took power via back-room deals, threats and terrorism. Read more at http://democraticpeace.wordpress.com/2008/12/16/what-hitler-was-not-elected/ or just google ‘hitler was not elected’

  • [...] See my review of the Auckland version of this event. [...]