Government shouldn't change the law just because of a referendum

The Government's response to the so-called smacking referendum seems on its face to be undemocratic. After all, it seems obvious that we voters elect MPs to act on our behalf, to execute our wishes. If a majority is clearly unsatisfied with the current law, then, the argument goes, the government should respond and do what the majority wants.

This line of argument assumes that our elected Parliament should get as close as possible to direct democracy. This is where the people directly settle the law, for example through a binding referendum. It is often assumed that direct input from the people is the essence of democracy, so that the way we govern and make laws should look as much like this as possible.

However, direct democracy is not the ideal, and we shouldn't base our institutions on it or expect our representatives to simply translate popular sentiment into law. The purpose of government is to secure the common good—to enable us to live together in peace under conditions that allow us to flourish. Whatever form of government we adopt has to be able to make good laws that will achieve this goal, even when this is unpopular.

Direct popular control over the content of the law is not likely to produce good law. Lawmaking requires careful thought in response to detailed facts. On many issues, voters do not have the time or resources to consider everything relevant. The electorate cannot frame alternative proposals but just responds to a yes/no take-it-or- leave-it question. The experience from the United States shows why we shouldn't extend binding citizen-initiated referenda to New Zealand. There, special interests capture the direct law-making process, manipulating poorly informed majorities to make laws in the interests of the promoters. Also, voters in a series of referenda may well adopt inconsistent positions. In California, for example, voters in 1978 effectively froze taxes but then in later years approved a number of specific funding commitments, contributing to their present budgetary crisis.

That is why we should model our institutions on representative democracy, not direct democracy. Representative democracy gives lawmakers the job of thinking carefully and independently about the best course of action. It avoids the pitfalls of direct democracy, because an assembly of full-time lawmakers has the capacity to consider relevant facts and arguments, including a range of alternatives, not just one take-it-or-leave-it proposal. And if their decisions prove unsatisfactory, they can easily revisit them. There is accountability—voters select the legislators, who have good reason in a competitive electorate to consult them and to make law after a public process that is open to popular participation.

While representative democracy is better than direct democracy, for it to fulfil its promise, it is vital that legislators deliberate publicly and carefully. Otherwise, they are unlikely to legislate well. Unfortunately, our Parliament doesn't always make room for careful deliberation. Parliament gives itself the best chance of considering issues deeply and fully, and coming up with lasting solutions that people will accept, when it takes its time. This includes genuine opportunities for public input and consultation, allowing thoughtful public reflection on the issues. This allows flaws and unintended consequences in a bill to be identified, and gives the facts and underlying worldviews a chance to be well-ventilated. And, as much as it is ever possible to do so, it insulates a proposed law from sheer political expediency.

This is why it was concerning when the Government, early in its term, used urgency to rush through legislation introducing 90 day trial periods in employment contracts. Whether or not it was a good policy, it deserved a proper debate in Parliament and in public. Although not as bad as misusing urgency, short deadlines for public submissions on bills also raise concerns. Most recently, a mere two weeks was allowed for submissions on the bill repealing the criminal defence of provocation. As this was something the last government also did—think of the six weeks for submissions on the complex and fatally flawed Electoral Finance Bill—it seems the problem may be one of political culture. It's this kind of process that contributed to world-renowned constitutional scholar Jeremy Waldron describing New Zealand's law-making as "parliamentary recklessness."

To give credit where it's due, most legislation goes through a more considered process, and the Government's current review of electoral finance laws, with multiple opportunities for public input, is excellent. But there's enough to suggest representative democracy isn't working as well as it should in New Zealand.

For good reason, we have the structure of a representative democracy. It would be wrong for Parliament to change the "anti-smacking" law just because of the referendum. But our representatives do owe it to us to respond to the overwhelming public opposition to the current law by considering carefully and publicly whether it should be changed. Parliament fails us when it enacts laws in haste, without careful, open deliberation. And until itand westart to take legislative deliberation seriously, law-making will often be unnecessarily poor and divisive.

This piece was written jointly by Richard Ekins, a lecturer at Auckland University's Faculty of Law, and Alex Penk, Maxim Institute's Policy and Research Manager. It draws in part on material in Richard's recent lecture and Guest Paper, "A Government for the People: The value of representative democracy."

• Read Richard Ekins' Guest Paper for Maxim Institute, "A Government for the People: The value of representative democracy"
• Listen to Richard Ekins' lecture, "A Government for the People: The value of representative democracy"
• Listen to Richard Ekins being interviewed on Newstalk ZB

Forgiveness isn't a soft option

We often think forgiveness is a "weak" response when someone has wronged us. But according to an article titled "Healing interpersonal wounds: A case for forgiveness" by Myron and Genista Friesen, forgiveness can be an extremely helpful way to respond to the inevitable relational hurts that will occur in our lives. They say that research seems to indicate this response can have relational, psychological and physical benefits. Friesen and Friesen describe forgiveness as "a process of motivational and emotional transformation, whereby a victim's initial anti-social emotions and motivations like hatred or revenge, are transformed into more relationship-constructive inclinations ...." Citing international research, they argue that "...people with a greater disposition towards forgiveness have lower depression, anxiety, social dysfunction and somatic symptoms ...."

It is important to recognise that forgiveness and reconciliation—the "restoration of a relationship"—are not the same thing. The two can often be conflated, but it is significant to note that "forgiveness can take place without reconciliation." Recognising that forgiveness does not have to lead to an ongoing relationship can allow a victim to feel more liberated to be able to forgive, without risking ongoing hurt. While more research is needed to explore the consequences of forgiveness, it seems that there is good reason to make room for it in our culture and in our individual relationships.

When someone has hurt us, it can seem absurd or impossible to forgive, but it seems that the benefits of forgiveness stretch beyond mere peace of mind. Learning how to forgive is difficult so it is important that we foster a culture where forgiveness is seen as a legitimate and helpful way of responding to hurt, rather than as a "weak" response.

• Read "Healing interpersonal wounds: A case for forgiveness"