Direct Democracy

1
Democratic Reform (Direct Democracy) Presentatio
n to Commissioners January 8 and 9, 2004
2
CLD Mission

• Enhance our citizen-centred democracy in New
  Brunswick building on the values, heritage,
  culture, and communities of our province.

3
CLD Mandate

• Term of Reference 1
• Enhance direct democracy by proposing a New
  Brunswick Referendum Act that sets out the rules
  and procedures for allowing province-wide,
  binding referendums on significant public policy
  issues
• Term of Reference 2
• Enhance public involvement in government and
  legislative decision- making.

4
Competing PrinciplesDirect Democracy and
Greater Public Involvement in Decision- Making
vs. Representative Democracy
5

• Direct Democracy
• And Greater Public Involvement in Decision-Making
• Based on the idea that people should govern
  themselves.
• Allows electors to participate in the formation
  of public policy by consulting them on issues.

6
Representative Democracy

• Based on a transfer of authority from the
  people to representatives
• Form of indirect rule necessary for large
  populations.
• Consent of the governed, to be governed.

7
A move toward direct democracy

• Increasingly, the political climate in Canada
  is leaning toward greater use of instruments of
  direct democracy. David Macdonald,
  Referendums and Federal General Elections in
  Canada, Royal Commission on Electoral Reform
  and Party Financing (1991), vol. 10, Research
  Studies, p. 339.

8
Examples

• National referendum on Charlottetown Accord -
  1992.
• PEI referendum on Confederation Bridge - 1988.
• Saskatchewan referendum on balanced budget
  legislation, mandatory referendums on
  constitutional amendments, and public funding for
  abortions - 1991.
• BC referendum on direct democracy - 1991.
• Quebec referendum on sovereignty - 1995.
• Newfoundland referendums on denominational
  schools - 1995 and 1997
• NB referendum on VLTs - 2001.

9
Examples (contd)

• NS to hold province-wide plebiscite on Sunday
  shopping in October 2004.
• Tax payer protection legislation in Ontario,
  Manitoba, Alberta and New Brunswick requires
  voter approval in a referendum to increase
  certain taxes or impose certain new taxes.

10
Arguments For and AgainstDirect Democracy and
Greater Public Involvement in Decision-Making
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Arguments For

• Allows more effective popular control of public
  authorities.
• Reflective of evolving view of democracy and
  public input
• Brings government decision-making closer to the
  people.

12
Arguments For (contd)

• Allows will of the majority to be directly
  expressed.
• Maximizes citizen involvement in the
  democratic/policy process.
• Can be a useful vehicle of governance for
  example, allows governments to put a single issue
  to electorate without an election, avoiding risk
  of political instability.

13
Arguments Against

• Undermines representative democracy.
• Can be divisive (by pitting communities and
  interests against each other).
• Can be destructive of minority rights (places
  undue power in hands of the majority of the
  moment).
• Weakens will of legislators to tackle difficult
  issues and problems.

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Arguments Against (contd)

• Instruments of direct democracy (i.e. referendum)
  can be controlled by political elites.
• Can be used to accomplish insincere objectives.

15

• Instruments of Direct Democracy include
• Referendum
• The Initiative
• Recall

• Instruments of Indirect Democracy (Public
  Involvement) include
• Improved consultation mechanisms and
  opportunities for interaction between citizens
  and government and legislature (changing the role
  of MLAs and the electoral system).
• E-democracy use of internet technology (on-line
  voting, polling) to seek public input on policy
  issues.

16
Instruments of Direct Democracy
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Referendum

• A method of referring a question or set of
  questions to the people directly for decision or
  guidance, as opposed to allowing the question(s)
  to be settled by the peoples representatives in
  the legislature.
• Originally, the terms referendum and
  plebiscite had two separate meanings
  (plebisciteconsultative, referendum binding)
  but now the terms are used interchangeably.

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A referendum is

• More than a public opinion poll, but less than
  an election.
• Can be both political (setting the question)
  and legal (binding) in nature.
• Used more frequently in Canada than before.

19
Use of Referendum in Canada

• All provinces allow for referendum and/or
  plebiscites to be held at the provincial level,
  usually through their provincial Elections Acts.

20
Use of Referendum in Canada (contd)

• Currently, the NB Elections Act allows the L-G in
  C to order a plebiscite for the purpose of
  submitting a question or questions to the
  electors of the Province. s. 129(1)
• Plebiscite is to be held at the time of a
  provincial election.
• The provision is very general.
• Does not specify on what topic a plebiscite may
  be held.
• Does not set out rules/procedures.

21
Use of Referendum in Canada (contd)

• Newfoundland and Labrador has incorporated its
  rules regarding conduct of elections and election
  financing under the Elections Act to the conduct
  of plebiscites under that Act.

22
Use of Referendum in Canada (contd)

• Under Nova Scotias Liquor Control Act, the
  Office of the Chief Electoral Officer conducts
  plebiscites on sale of liquor on behalf of the NS
  Liquor Corp. and Alcohol and Gaming Authority.
• The NS government recently enacted legislation to
  hold a binding plebiscite on Sunday shopping in
  NS in October 2004.

23
Use of Referendum in Canada (contd)

• In Ontario, electors may only vote in a
  referendum to authorize an increase in the tax
  rate of the province.
• In Manitoba, a referendum is required to
  authorize increasing taxes or privatizing
  Manitoba Hydro.

24
Referendum legislation in Canada

• 5 provinces (PEI, Quebec, Saskatchewan, Alberta
  and BC) and 2 territories (NWT and Nunavut) have
  enacted legislation specifically governing use of
  referendum.

25
Comparison of Legislation
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Federal Referendum Legislation

• Referendum Act governs national referendums.
• Only used on Constitutional issues.
• Governor-in-Council initiates H of C Senate
  approve question.
• Results are not binding.
• 5000 spending limit applies to individuals and
  groups.
• Registered referendum committees have much higher
  spending limits.

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Federal Referendum Legislation (contd)

• Clarity Act - in the event of a referendum on
  the separation of a province, the federal
  government must determine that the question was
  clear and unambiguous before entering into
  secession negotiations with that province.

28
NBs Experience with Referendum/Plebiscites

• 2001 VLT Referendum
• Act of legislature passed to implement the
  referendum
• Province-wide vote
• Binding result
• Government initiated
• Question set out in regulation
• Yes/no question
• Simple majority (50 1) required
• 1967 Plebiscite on lowering voting age from 21
  to 18

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VLT ReferendumMay 14, 2001

• The Question
• Should the Province of New Brunswick continue
  to permit the legal and regulated operation of
  video gaming devices (commonly referred to as
  video lottery terminals or VLTs)?
• YES / NO
• Results
• Yes 53.1 (122,061 votes)
• No 46.9 (107,753 votes)
• Source Office of the Chief Electoral Officer

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Key Issues around a NB Referendum Act

• Who initiates? Government? Citizens?
• Who votes all registered voters? Registered
  as of when? Implications on Elections NB.
• On what topics can referendum be held? What
  should significant public policy issuesmean?
• When? Timing of referendum with local/DEC/RHA
  elections? With provincial elections? Any time?

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Key Issues around a NB Referendum Act (contd)

• How? Process issues
• -Who sets the question? (Government? Legislative
  Assembly? Citizens?)
• -Should there be parameters around the question?
  (i.e. it must be a yes or no question)
• -Should there be spending limits? Regulation of
  interest groups/political party campaign
  activities?

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Key Issues around a NB Referendum Act (contd)

• What majority is required to implement a
  result? A simple majority? 60 of votes? A
  majority of all votes or of all valid votes?
• How should results be released? Province-wide?
  Poll by poll? Regionally?
• What happens once results are in? Government
  required to change policies, programs, introduce
  a bill in Legislature as soon as possible?

33
Some Questions for Establishing a NB Referendum
Act

• Does it avoid creating divisions between
  communities (linguistic, geographic, cultural)?
• Does it lead to legitimate discussion and debate
  among citizens and ultimately, a public judgment
  that reflects collective needs and values?
• Does it ensure an appropriate mix of citizen,
  party, and interest group participation in the
  process?

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Some Questions (contd)

• Does it ensure a fair process? Some tests
• -administration of the vote is impartial.
• -use of referendum is sincere (genuine intention
  to extend citizens control/influence over policy
  issues).
• -question is valid (within provinces
  jurisdiction) and clear/unambiguous.
• -voters are able to become informed on issues.
• -all interest groups and parties are on equal
  footing (rules on financing, spending,
  advertising.)
• Sources M. Mendelsohn and A. Parkin,
  Introducing Direct Democracy in Canada, IRPP -
  Choices, Strengthening Canadian Democracy,vol. 7,
  no. 5, June 2001.
• Patrick Boyer, The Peoples Mandate Referendums
  and a More Democratic Canada (Toronto Dundurn
  Press, 1992.)

35
The Initiative

• A process whereby a specific number of voters
  initiate a bill or demand that a law be amended
  or repealed.
• Also called a popular or citizens initiative.
• Sometimes classified as a form of referendum.
  
• The initiative is common at the state level in
  the USA and in Switzerland, Italy, New Zealand.

36
The Initiative (contd)

• Direct initiative (e.g. California)
• If a voter gathers enough signatures from
  other voters in a specified period of time,
  he/she can place a measure before the electorate
  in a referendum.
• If it passes, the measure becomes law.

37
The Initiative (contd)

• Indirect initiative (e.g. Massachusetts, Maine)
• Similar to direct initiative, but if enough
  votes are gathered, question goes to state
  legislature for public hearings.
• Question may be placed on ballot, with or
  without amendments.
• Or, legislature may submit to voters its own
  proposal along with original one.
• Or, legislature may enact its own legislation
  responding to spirit of original proposal.

38
The Initiative (contd)

• Abrogative Initiative (e.g. Italy)
• Provides voters with an opportunity to
  overturn legislation that has been passed by
  parliament.
• Requires a certain number of signatures
  (500,000 in Italy) to be collected within a
  specific time period to initiate the process.
• A court determines if the question is eligible
  to be put to a popular vote.
• For the initiative to pass, at least 50 of
  eligible voters must have turned out to vote.

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The Initiative in BC

• BC introduced the initiative in 1995 with the
  Recall and Initiative Act.
• Allows an elector to petition other electors
  for introduction of a new law or changes to
  existing laws.
• Petitioner must make an application to the
  Chief Electoral Officer (CEO) and provide a copy
  of draft bill.

40
The Initiative in BC (contd)

• Petitioner must obtain the signatures of 10
  of the electors in each electoral district in BC
  within 90 days.
• Once signatures are verified by the CEO, the
  initiative is presented to a committee of the
  Legislature.
• Committee may table a report recommending
  draft bill be introduced or refer it to the CEO
  to be put to the electorate in an initiative vote
  (requires support of 501 of electors from
  2/3rds of all electoral districts to pass.)
• If passed, government must take steps to
  implement bill.

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Key Question

• Is the initiative, or any form of it,
  feasible/desirable for NB?

42
Recall

• A procedure whereby constituents have the power
  to remove an elected representative before his
  or her term has expired.
• Available in some US states for recall of state
  officials and in several states for recall of
  local officials.

43
Recall in BC

• Introduced in BC with the Recall and Initiative
  Act.
• To date none of the 20 applications for recall
  approved by BCs CEO have been successful.
• Recall proponent must apply to CEO and provide
  statement of why member should be recalled.
• If application is approved by CEO, proponent has
  60 days to gather signatures of 40 of those on
  electors list of that electoral district in the
  last election.

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Recall in BC (contd)

• Those electors who sign must currently be
  registered to vote.
• If CEO verifies that enough signatures have been
  gathered, member may no longer hold seat in
  legislature and a by-election must be held.
• Recalled member can stand as candidate in
  by-election.
• A member cannot be subject to recall within the
  first 18 months after he or she is elected.

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Key Question

• Is recall feasible/desirable for NB?

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Academic Sources

• Boyer, Patrick, The Peoples Mandate
  Referendums and a More Democratic Canada
  (Toronto Dundurn Press, 1992.)
• Dunsmuir, Mollie, Referendums The Canadian
  Experience in an International Context,
  Background Paper BP-271E, Parliamentary Research
  Branch, Library of Parliament, January 1992.
• Marquis, Pierre, Referendums in Canada The
  Effect of Populist Decision-Making on
  Representative Democracy, Background Paper
  BP-328E, Parliamentary Research Branch, Library
  of Parliament, August 1993.

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• Sources (Contd)
• Mendelsohn, Matthew and Andrew Parkin,
  Introducing Direct Democracy in Canada, in
  Choices - Strengthening Canadian Democracy, IRPP,
  vol. 7, no. 5, June 2001.
• Mowrey, Tim and Alain Pelletier, Referendums in
  Canada A Comparative Overview, in Electoral
  Insight, vol. 3, no. 1, January 2001.
• Tardi, Gregory, Litigation in Canadian
  Referendum Politics in Canadian Public
  Administration, Fall/automne 2003, vol. 46, no.
  3, pp. 339-363.
• Compendium of Election Administration In Canada
  A Comparative Overview, Elections Canada, 2002
  Edition.