KEY POINTS:
Hubert Humphrey, Lyndon Johnson's vice-president, famously said that "the right to be heard does not automatically include the right to be taken seriously".
Regrettably, this wisdom was lost on those who passed legislation in 1993 providing for so-called Citizens' Initiated Referenda (CIR).
Governments have often referred major issues to the people - notably matters to do with liquor licensing and the electoral system - though they have not always been bound by the results. But referendums initiated by the electorate are a fundamentally flawed concept: pressure groups get to waste millions of public dollars asking loaded questions to gain predictable responses that will have no effect on policy that might not be achieved by other methods of public debate.
The proposed referendum on the "anti-smacking" law graphically demonstrates all these shortcomings. It is probably pointless to repeat the inconvenient fact that the referendum's sponsors have wilfully ignored - that the law change did not ban smacking, but removed the defence against a charge of assault available only to parents. It is probably equally futile to remark that, the police having been given discretion not to prosecute inconsequential cases, the courtrooms of the nation have not been bulging with bewildered mothers. But it remains important to highlight the futility of the entire process of the referendum.
In the first place, referendums are unnecessary. Governments are elected to govern. Opinion polls, media commentary, letters to editors and approaches from legions of spin doctors and lobbyists leave them in no doubt about the reception their policies are receiving. And they must seek a three-yearly mandate.
Second, referendums are meaningless. The overwhelming majorities in each CIR held so far (88 per cent for maintaining firefighter numbers; 81 per cent for cutting MP numbers; 91 per cent for emphasising victims' rights) proved nothing so much as the skew imparted by the wording of the question. So it is with the present referendum, which asks whether "a smack as part of good parental correction [should] be a criminal offence?". (Never mind that it is not; the law change is aimed at those who regard a beating with an iron bar "good parental correction".)
The Clerk of the House must approve the petitioners' suggested wording, and did so in this case with a minor change. But if the wording had been "should parents be allowed to get away with beating their kids so badly they require hospitalisation?" they might have been less pleased. More likely they wanted one that said "Should the Government be able to tell you how to raise your kids?".
This leads to the final flaw: referendums are pointless. They reduce extraordinarily complicated hot-button issues to emotive pieties. Removing GST on food - the subject of the latest petition for a CIR - would be mind-bendingly complex and impose massive compliance costs on businesses (which would add to food prices). But people are signing up to the idea in droves because it sounds good.
Likewise, it is no easy task to balance the rights of victims with the obligation we have, as a civilised country, to pay some attention to the social dysfunction that leads to crime. And it is made not one whit easier by the referendum howling that the crims should be put to hard labour.
In the end, of course, referendums are less an expression of public opinion than of popular outrage. It feels good to let them know how you feel. But, in election year in particular, "they" have taken great pains to know already. And devotees of CIRs should remember Humphrey: the right to be heard does not include the right to have someone else foot the bill for your self-expression.
