We’re in referendum season. Just last weekend there was Australia, and a sorry defeat for Indigenous people’s rights. Then Poland, and a failed sideshow to the toppling of the far-right government.
With civil servants laboriously pondering how to express women’s place in society, we can expect at least one poll here next year. Maybe more. European Union states are increasingly pushing for treaty amendments ahead of further enlargement, and the prospect is, sooner or later, that Ireland will be asked to endorse further change.
In Australia the referendum has had a chequered history. In the 122 years since Federation, it has held 44 referendums to alter the constitution – only eight have been successful (a national majority, plus four of the six states).
Among others there were repeated efforts to mandate holding Senate and House of Representatives elections on the same day, set the retirement age of judges, two failed attempts to nationalise monopolies, attempts to extend federal powers over state debts and the economy rights, and a failed attempt to turn Australia into a republic (1999).
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No referendum has passed without bipartisan backing, and so last weekend’s attempt to give Aboriginal and Torres Straits Islanders a consultative body, the Voice, was doomed from the start. Like Irish EU referendums, a combination of opportunist opposition parties hoping to embarrass the government, sections of the hard left and nationalist bigots, united voters around the idea that putting a reference to race in the constitution was itself racist. Even if it was there precisely to protect a marginalised, deeply downtrodden ethnic minority.
In truth – sound familiar? – few voted “No” because they opposed the moderate idea of providing a new consultative body.
Bizarrely, given the result, two referendums in 1967, to allow Aboriginals be counted when “reckoning the numbers of the people of the Commonwealth”, and to allow the federal government to make special laws concerning Aboriginals, were endorsed by nine out of 10 voters. And yet in 1999, a vote rejected a new constitutional preamble which would have enshrined their constitutional recognition.
In Poland last weekend, the referendums were not the main event; the parliamentary election which displaced the right-wing nationalist PiS government after eight years was that. But deeply political referendums were also held, designed to showcase the government’s attacks on the opposition. Referendums in Poland are rare – Article 125 of the constitution requires they be held only on matters of “particular importance to the state”. And no attempt was made at bipartisan setting of the deeply tendentious, factually inaccurate questions. “Do you support,” one question asked, “the sale of state assets to foreign entities, leading to the loss of control by Polish women and men over strategic sectors of the economy?” Another was: “Do you support the admission of thousands of illegal immigrants from the Middle East and Africa under the forced relocation mechanism imposed by the European bureaucracy?”
To which more than 90 per cent voted “No”.
But, while the election turnout was a high 73 per cent, in the referendums at the same ballot boxes, it was only 40 per cent – one third of all voters, on the advice of the opposition, boycotted what they saw as fraudulent polls. The results were deemed invalid for failing to reach the required 50 per cent threshold.
[ Donald Tusk’s election win brings Polish democracy back from the brinkOpens in new window ]
The referendum is not just an alternative way of expressing the popular will, but an expression of a distinct theory of democracy, a preference for direct “pure” democracy at the expense of the representative or mediated democracy which we use to govern our affairs normally.
In Ireland, the courts’ prohibition on State involvement/funding on either side of a referendum argument also suggests that any mediation by our elected government somehow contaminates the “purity” and validity of the exercise and, some say, the legitimacy of the result.
But any tinkering with democratic mechanisms, from changing the size of constituencies, voting ages, voting systems, or switching from direct to indirect voting, brings with it political consequences and can affect vote results, sometimes dramatically – there is no “best representative system” system, only different mechanisms that best reflect specific value-driven imperatives.
Is representativeness, whatever it means, most important, or political stability? Localism (knowing your TD), or ideological spread? Strong political parties, or the wisdom of age? And are yes/no answers to complex questions really useful?
There is nothing special about the referendum as a democratic mechanism, and we should not fetishise it. Many feel it is an obstacle to orderly, rational government, not a good way to do our business. If the EU comes knocking again, politicians must ask hard questions about the legal necessity for another referendum. Specifically, whether the changes sought really mark an unconstitutional transfer of sovereignty to the EU beyond that already provided for in the treaties, as the courts require. It’s a high bar that should not be crossed unless absolutely necessary.