Understanding the Elephant(s) in the Room for the 2020 Elections: Referendums

This year Kiwis have the option to pōti (vote) in two referendums as well as in the general election. Most of us understand how a national election works (and if you don’t please check out vote.nz), but this may be a lot of tauira (student’s) first time voting in a referendum. A referendum is a general vote by the people on a question or statement. Referendums are a direct decision by the people which can inform or guide the Karauna (government) when making legislation.  

The referendums this year surround the legalisation of cannabis and the End of Life Choice Act 2019. For more details about what these referendums entail, referendums.govt.nz explains everything very well. That information is readily available, but we’d like to explain now what the referendums can actually do, and what your pōti will actually mean. 

What are the legal implications of a referendum? 

In Aotearoa New Zealand, a referendum can be binding or non-binding. This means that a referendum can either bind the government to put into force the decision reached by the people’s pōti, or they won’t be bound, and the referendum decision may not produce any results. This is not to say that non-binding referendums are pointless, they can provide valuable information to the government, and can inform policy makers about what the interest of the people is. Parliament may also choose to enact legislation based on the result of a non-binding referendum as well. But ultimately, because Pāremete (Parliament) is sovereign, the result of a non-binding referendum may never come into fruition. 

Most recent referendums in Aotearoa have been non-binding with the exception of the 1993 Electoral Referendum. This referendum allowed the people to decide if they wanted to change the then first-past-the-post electoral system to a mixed-member-proportional one. This decision was binding meaning that if the people decided in favour of switching, which was the case, that the new Electoral Act 1993 would become law.  

There have been seven non-binding referendums in recent history. The 1992 referendum, which asked whether the 1993 binding electoral referendum should be held was followed by the Karauna (government). Parts of a few others have also been followed, but the majority of the others, despite public engagement, were largely ignored. In many places, a non-binding referendum is said to have moral force and should be followed as to reflect the will of the people; this could certainly be the case, and has been the case in places such as the UK, but ultimately Pāremete (Parliament) is supreme and can decide how and what to legislate regardless of a referendum.   

A binding referendum has not been held since 1993, but this year the decision regarding the End of Life Act 2019 is binding. This means that if more than 50% of the votes in the referendum support passing the legislation it will come into force (12 months after the announcement of the decision). This is a very significant decision. But again, since this referendum is also run in conjunction with an election, even if the Act comes into force, there is nothing stopping a new parliament from repealing it once they form government.   

On the other hand, the cannabis referendum is a non-binding referendum. This means that the result of the referendum is reliant on the government of the day following through with it.   

While this might all sound pessimistic, just as easily as the Karauna (government) could choose not to act on the decision, they could choose to listen and follow the people’s decision. There is no way to know how Parliament may respond to the results of the referendum’s, so we, especially as a new group of voters, should not disregard the power our collective voice can have.   

What happens after we pōti (vote)? 

Hold your horses!! The results of the referendum will NOT be released at the same time as the general pōtitanga (election) results. The preliminary result will be announced on Friday the 2nd of October. However, the final official referendum result will be confirmed on Friday the 9th of October.  

Due to the binding nature of the End of Life Choice Act 2019 – where the referendum achieves a  majority assent from electors it will come into force 12 months after the official result of the referendum is declared. Where the referendum falls short of a majority the Act will automatically be repealed and will have no legal effect.  

On the flip side, if the legalisation of cannabis receives a majority of our pōti (vote) it will go back into the hands of Pāremete (parliament). So far, we have only seen a draft of the Cannabis Legalisation and Control Bill. Therefore, that Bill will be subject to ordinary parliamentary procedure. Throughout this process Kiwis will have the opportunity to submit their feedback on the Bill. Only once the Bill makes it past these constitutional stages will it become an Act of Pāremete (parliament) and enforceable by law.   

He kupu whakatepe — Conclusion 

In Aotearoa New Zealand we are lucky enough to be living in a democracy, where we have the opportunity for our voices to be heard. It is important in this election (more than ever) that we use our right to pōti (vote)! The statistics across in America speak for themselves – 43% of eligible voters did not vote in the 2016 presidential elections. That means that more people chose not to vote than all the people who voted in the election. 

If you are thinking yeah nah WE are NOT like the USA, don’t be so sure. Here in Aotearoa in the 2017 election approximately 692,155 people who were enrolled to vote did NOT.  

If there is anything you take away from this atikara (article) we urge you to thoroughly educate yourself about the upcoming referendums and then PŌTI PŌTI PŌTI – VOTE VOTE VOTE! 

By Law for Change