Geoffrey de Q Walker

Initiative and Referendum: The People's Law

CIS Policy Monographs 10

Citizen-initiated referendums (CIRs) enable the electorate to vote "no" to a particular piece of legislation provided that sufficient signatures can be raised on a petition calling for the poll. More amitious variations on the same theme allow the people to initiate legislation for decision by referendum, and to recall politicians or other elected officials.

Up the the First World War Australia was one of the leading countries in democratic reforms such as universal adult suffrage and the secret ballot. Walker reports that:
"The Australian Labor Party, from its earliest days in the 1890s, accepted the principle of initiative and referendum (and later the recall) not merely as policy but as one of the primary objectives of the party."

Legislation for CIRs passed in the Labor controlled Queensland lower house in 1915 but it stopped at the conservative-dominated upper house. After this no serious efforts to promote the people's vote occurred for many decades and Walker reported that in 1963 the Labor Party dropped it from the party platform.

Walker identified three strands of thought which are hostile to the principle of the people's vote; these are the doctines of legal positivism, Parliamentary sovereignty and political elitism. Legal positivism sees the essence of law as a product of the power of the state, in contrast with the view that sees the law as a formalisation of conventional norms and popular consciousnes whihc is merely administered and enforced by agencie of the state.Legal positivism has dominant in academic  circles for some time ad it provides the basis of the theory of Parliamentary sovereignty. This was expounded by A V Dicey in his classical work The Law of the Constitution which dominated constitutinal thought for almost a century. According to this view the British Parliament has absolute power to pass statutes as it sees fit, regardless of popular customs and morality. Walker claims that this has been taught as a dogma in law schools and has been carried by lawyers into Parliament where it is a very congenial notion. It is not generally noticed that Dicey changed his mind on the omnipotence of Parliament and spent the rest of his life campaingning for the people's vote.

Another hostile developmentwas the emergence of "ruling elite" theories, especially in the work of Mosca and Pareto. These views achieved wide acceptance in the intellectual climate of suspicion regarding the rationality of people that was engendered by popular interpretations of work by Darwin, Freud and Marx.

Despite all these adverse influences, local interest in CIRs resulted in numerous submissions to the Constitutional Reform Committee making the case for the people's vote. The Committee even suggested that voter-initiated reforms should be introduced for changes in the Constitution but it recommended that wider use of the system should be deferred until it is tested in constitutional referendums. [That recommendation did not proceed].

This is a rather timid approach in view of the success of the CIR system in Switzerland, Austria, Italy and 24 states in the USA. The Swiss have had the people's vote ata the canton level since 1830 and at the national level since 1874. A poll to challenge Federal laws can be called by 50,000 voters or eight cantons: similarly a poll can be called to challenge entry into international treaties or collective security arrangements with other countries. The petition must be received within 90 days of the publication of the law. Partial changes to the Constitution can be initiated by popular request from 100,000 voters.

The Californian Constitution provides for the "referendum" to deal with laws introduced by the government and for the "initiative" to allow the people to propose laws or changes to the Constitution. A referendum can be called by a petition signed by 5% of eligible voters, within 90 days of the enactment date of the law under challenge. The petition for an initiative requirs 5% of voters for a law and 8% of voters to modify the Constitution.

The matter of referendums became topical in Australia during the 1980s in the campaign against the Australia Card. This illustrated the problem that the people's vote is supposed to resolve. The Prime Minister claimed to have a mandate from the electorate which returned his government with the aid of Green Party and Democrat Party preferences. However on the specific issue of the Card the Democrats sided with the Opposition and their combined vote across the country exceeded that for the Labor Party by a wide margin (approximately 5 million versus 4.3 million). Many Labor voters disliked the card but were not prepared to change their vote on that issue alone. However with the Labor Party back in power they were prepared to oppose the Card and some Labor stalwarts were prominient in the anti-Card campaign. For a time the Prime Minister promised to "ignore the decibels", although eventually he capitulated to the growing  body of public opinion. In this situation the public could have had their way through the referendum even if the Prime Minister did not back down.

Walker's most telling arguments in favour of the CIR system concern the decline of representative democracy and the rise of the party system and the capture of the politicians by special interest groups - "the factions". Members of the lower houses of Parliament come from defined electorates but they no longer serve their constituents as they may have done long ago.The are servants of the party and their loyalty has be to proved all the way from preselection to the devision in the House.

Traditionally the members of Parliament were supposed to debate the motions before the House, then cast their votes in line with their stated principles, the interests of their constituents and the public good. But the rise of the party sytem ensures that the debate preceding the vote is an empty ritual that does nothing to change anyone's vote. It merely fills in time and enables the more witty speakers to score debating points. The politicians have been captured by the party system and the parties have been captured by interest groups who threaten to turn the tide of elections by mobilizing blocks of votes in marginal seats where a handful of votes can decide the result.

The CIR system would enable the people to defend themselves from predatory interest groups by exeting the power of veto over legislation that hands out special favours to sectional interests. It would also revive confidence in the right to have a meaningful vote, at least some of  the time. For the majority of people in "safe" electorates there is no sens that their vote makes a difference. There is also the frustrating sitution where none of the major parties have acceptable policies on some issues. Walker wrote:

An educated electorate finds it increasingly frustrating to be given a choice only between two packages of personalities and policies when it might prefer to elect certain invidividuals but reject some of their policies.

It must be asked why the people's vote is not more widespread if it is so attractive on the basis of democratic principles and it works effectively in practice. Part of the answer lies with the intellectual agents of influence who have accepted the doctrine of Parliamentary sovereignty, partly on conscientious grounds and partly because most belong to special-interest lobby groups. The other part of the answer is very simple. The system has to be put in place by politicians and they are the people who have most to lose in power and influence under the threat of  the CIR.

Several objections are routinely raised against the people's vote. Most of these are provoked by anti-democratic sentiments or by simple misunderstandings. One of the most common criticisms in Australia is that "The system would be hopelessly conservative because Australians always vote No in referendums". That perception is based on the results of Federal referendums where there is a record of failure of  moves designed to increase the power of the central government. That would appear to reflect sound democratic judgement on the part of the people and the pattern is reversed at the State level where Walker reported a wide margin in favour of Yes votes (20 to 13). On these figures it seems that the voters have no bias towards Yes or No and they are capale of treating issues on their merits. That is also demonstrated by the mixed results recorded in multiple-question referendums where the critics would expect the same result (NO) on each question.

That demonstrates the great virtue of the referendum, that it permits people to treat issues separately, quite unlike the situation in a general election where voters have to take or leave big baskets of policies. Consequently it is next to impossible to tell from the election results what the electorate really wants on particular issues. 

Another objection runs "The system would not work in this particular country (or state)". This sounds very like the familiar bureaucratic response "If it was any good we would have it already".

It would undermine the existing system of government. This is based on the notion that the final say on political issues should lie with the unchallenged voice of the elected government, regardless of the pros and cons of the issue, the margin of the result, changes in circumstances and the kind of horse-trading that went on over the exchange of preferences in the election. In philosophical circles this is called Parliamentary sovereignty and it denies the spirit of democracy which is supposed to depend on the leaders being the servants of the people, not the masters. The second prop to this argument is the idea that the Government knows best. It has been elected on the basis of its honesty, wisdom and sound judgement, so it has a charter to run the place for the duration of its term without intereference from the people (or the Opposition). "We won, so get over it!". There is the implication that the government cannot make mistakes, or if they do the people have no right to complain because they made the call and they had better be prepared to live with it until the next election.

But the electorate is usually confronted with impossible choices at the ballot box. The candidates and the policies are selected by the party machines and the policies of all partie are a mixture of good, bad and indifferent. The CIR  will not undermine the representative system either by replacing it or making it unworkable. It is more likely to improve the current system by encouraging the parties to resist powerful interest groups and strident minorities.

The people will be irresponsible and vote for short-term benefits like low taxes. The usual example of this used to be the Californian Proposition 13 which substantially reduced property taxes. But against that, a later referendum to reduce income tax did not succeed, in other words the move failed to gain a majority despite its appeal to self-interst in a very immediate way. Similarly in Italy (the land of the irresponsible?) the people rejected a system of wage indexation that would have in creased their pay in the short term with adverse effects on inflatipon down the track.

"Big money" and the media would have too much influence. Advertising and biased media coverage are most effective in shifting the vote when the issues are confused. This is bound to be the case in general elections where voters are obliged to compare two competing parcels of goods, each quite likely containing some items that people would rather not buy. In the referendum the choices are few and sharply defined. It is not surprising to find that the record for causes that lacked genuine community support have a dismal record despite some spectacular examples of big spending and media hype in favour of the (ultimately) losing side. Walker's analysis of the evidence suggests that big spending is quite lilely to rebound in favour of the other side.

With the major arguments against the people's vote apparently refuted, it remains to be seen whether the politicians will rediscover the democratic spirit which animated the Labor Party of the 1890s. Will they introduce a sytem to make themselves more accountable to the voters between elections? 

20 years later the answer is "No".

Rafe Champion.

From a review in Island Magazine, Tasmania, 1988