Citizens Initiated Referenda (Wording of Questions) Amendment Bill

Member's Bill

Explanatory note

General Policy Statement

Background

The purpose of this Bill is to make amendments to the Citizens Initiated Referenda Act 1993 to ensure that questions in citizens initiated referenda petitions are unambiguous and are not complex questions, leading questions or misleading questions.

The Act currently requires the Clerk of the House of Representatives, in determining the precise question for a citizens initiated referenda petition to Gazette a proposed question calling for public comment on the proposed question.

However, the Act is largely silent on the wording of proposed questions that are Gazetted and the processes to be undertaken by the Clerk of the House of Representatives upon receipt of the public comments.

As a consequence, questions that by the nature of their wording lead people towards a particular response to the question, questions that contain several propositions in one question, or questions that contain wording that is misleading in that is erroneous in fact or in law, are able to be Gazetted and subsequently included in a petition for a citizens initiated referendum.

An example of an approved referendum question that is both leading and misleading is the NZ Referendum on Child Discipline 2009 proposed by Larry Baldock. 

The question approved for that referendum "Should a smack as part of good parental correction be a criminal offence in New Zealand?" is leading in that the use of the word "good" before "parental correction" makes a value judgment which predetermines the answer. People answering the question will be drawn to answer "no" on the basis that what is "good" cannot be criminal.

The question approved for that referendum is also misleading in that it implies a single smack is will lead to criminalisation of a parent, which is a mis-statement of law, and that smacking children is part of good parental correction, which is a matter of opinion rather than fact.  The question is also arguably ambiguous in that it uses the term "smack" which is not a term that is defined in law and is open to interpretation.

A further issue of concern arose with the Violent Crime Referendum 1999 promoted by Norm Withers.  The question in that referendum was a complex question that effectively combined four separate and unrelated propositions on violent crime into one question.  While section 5 of the Act provides that neither an indicative referendum petition nor an indicative referendum may relate to more than one question, this was interpreted by the then Clerk of the House of Representatives as not precluding complex questions.  The result was a question that was confusing to voters and a referendum outcome from which it was impossible for the Government of the day to interpret the indicative view of voters on each of the propositions contained in the complex question.

This Bill defines the terms "ambiguous question", "complex question", "leading question" and "misleading question" for the purpose of the Act and place a duty on the Clerk of the House of Representatives to undertake such investigation and consultation to determine whether a proposed referendum question is ambiguous, leading, or misleading.

The Clerk of the House of Representatives will be required under the Bill to Gazette only questions that he or she determines to be not ambiguous, complex leading, or misleading.

It will further require that the Clerk of the House of Representatives shall not determine the precise wording of a question in a petition for a citizens initiated referendum in a form that is an ambiguous question, or a leading question or a misleading question. 

Clause by clause analysis

Clause 1 gives the Bill its Title.

Clause 2 is a commencement provision.  It provides that the Bill will come into force the day after the date it receives the Royal assent.

Clause 3 provides that the Citizens Initiated Referenda Act 1993 is the principal Act for the purpose of the Bill.

Clause 4 states the Bill's purpose.

Clause 5 amends section 2 of the Act to provide definitions of the terms "ambiguous question", "complex question", "leading question", and "misleading question".

Clause 6 inserts a new section 6A in the Principal Act to require the Clerk of the House of Representatives, on receipt of a proposal for a petition for a citizens initiated referendum, to make a determination as to whether the question proposed for the petition is an ambiguous question, a complex question, a leading question, or a misleading question.  It further requires the Clerk of the House of Representatives, in the event of a determination that a proposed question is an ambiguous question, a complex question, a leading question, or a misleading question, to advise the proposer of the petition of the reasons for such a determination if it is made and invite the proposer to resubmit the proposal in an acceptable form.

Clause 7 amends section 7 of the Principal Act to provide that the Clerk of the House of Representatives not Gazette notice of a proposal for a citizens initiated referendum petition if the question contained in the proposal is an ambiguous question, a complex question, a leading question, or a misleading question.

Clause 8 provides that the Clerk of the House of Representatives shall not determine the precise wording of the question in a petition for a citizens initiated referendum in a form that is an ambiguous question, or a complex question, or a leading question or a misleading question.

Sue Bradford MP

Citizens Initiated Referenda (Wording of Question) Amendment Bill

Member's Bill

Contents

The Parliament of New Zealand enacts as follows:

1       Title

This Act is the Citizens Initiated Referenda (Wording of Questions) Amendment Act 2009.

2       Commencement

This Act comes into force the day after the date on which it receives the Royal assent.

3       Principal Act amended

         This Act amends the Citizens Initiated Referenda Act 1993.

4       Purpose

The purpose of this Act is to amend the principal Act to ensure that a question proposed in petitions for Citizens Initiated Referenda are not ambiguous, are worded in a manner that does not lead voters in the direction of one outcome in the event of the question becoming the subject of a citizen's initiated referendum, and do not contain misleading statements of fact or law.

5        Interpretation

Section 2 is amended by inserting the following definitions: -

"ambiguous question, in relation to an indicative referendum petition, means a question that may be reasonably interpreted as having more than one meaning or as being uncertain in its meaning:

"complex question, in relation to an indicative referendum petition, means a question that conjoins two separate and unrelated propositions to treated them as a single question:

"leading question, in relation to an indicative referendum petition, means a question that is worded in a manner that can be reasonably interpreted as encouraging voters to support one of the two answers may be given to the question in a citizens initiated referendum:

"misleading question, in relation to an indicative referendum petition, means a question that contains wording that can be reasonably interpreted as being misleading as to fact or to law:

6        Ambiguous, complex, leading and misleading questions

The principal Act is amended by inserting after section 6 the following section: -

"6A    Ambiguous, complex, leading and misleading questions

(1)        The Clerk of the House of Representatives shall, as soon as practicable after receiving a proposal that complies with section 6 of this Act, undertake such investigation and consultation as a necessary for the Clerk of the House of Representatives to determine whether the question proposed to be put to voters in the indicative referendum is an ambiguous question, a complex question, a leading question, or a misleading question.

(2)        If the Clerk of the House of Representatives determines that a proposed petition for an indicative referendum proposes an ambiguous question, a complex question, a leading question, or a misleading question, the Clerk of the House of Representatives shall:-

(a)        Advise the proposer of the petition that the proposal proposes an ambiguous question, a complex question, a leading question, or a misleading question; and

(b)        Advise the proposer of the petition of the reasons the Clerk of the House of Representatives has made that determination; and

(c)        Invite the proposer of the petition to resubmit the proposal in a form that does not contain an ambiguous question or a complex question or a leading question or a misleading question.

(3)        Section 6(2)(b) does not apply to a proposal that is resubmitted following an invitation under subsection (2)(c).

7        Gazetting of notice of proposal for indicative referendum petition

Section 7(1) is amended by inserting "and does not propose an ambiguous question, a complex question, a leading question, or a misleading question" after "section 6 of this Act".

8        Determination of precise question

Section 11 is amended by inserting after subsection (1) the following subsection: -

"(1A)   The Clerk of the House of Representatives shall not determine the precise wording of the question under subsection (1) in a form that is an ambiguous question, or a complex question, or a leading question or a misleading question.