Why a referendum on smacking is a terrible idea

New Zealand First has just announced that it wants a referendum – another one, but binding this time – on our anti-smacking laws.

I’m not opposed to binding referenda in principle, although I do think they are the bluntest tool in the direct democracy toolbox, so you might think that I’d support this call.

I don’t, though, for several reasons. For a start, it’s been relatively recently debated, and settled, and there is no evidence for a need to revisit the issue. The police are not going around arresting thousands of people inappropriately or prosecuting parents for the kinds of force that are permitted under the act.

There is also the very strong evidence that physical punishment of children doesn’t work, and in fact is counter-productive, being liable to increase their levels of aggression later in life.

Most fundamentally, though, a referendum of this kind would strongly raise the question of who gets to vote. Most major issues predominantly affect adults, so it’s not really a problem that only adults vote. This issue, however, has huge consequences for children, yet they get no say in it. Even though there are extremely obvious, and generally unproblematic, reasons why children don’t get to vote, issues like this do raise a wider question. Namely, how does democracy protect the interests of those who don’t get a vote?

The same point applies, in a sense, to the environment, which obviously can’t ‘represent’ itself in a democratic process, and to future generations, who will be powerfully affected by our decisions now, and yet cannot influence them.

What society does in these situations, increasingly, is create bodies that can represent those groups. The Children’s Commissioner and the Parliamentary Commissioner for the Environment exist at least in part to create a ‘vote’ or ‘voice’ for otherwise excluded parties. In contrast, a referendum would do nothing to enhance the voice of children.

Referenda can also be dangerous because of the well-known potential for the majority to interfere with the liberties of the minority. In a country with strong constitutional protections for minorities, those dangers are minimised, but New Zealand does not have those protections. Again, there is great potential for the rights and interests of children, a very important minority, to be overridden in ways that are highly problematic.

In short, although an appeal to let ‘the people’ decide always sounds appealing, it is not always the right option, and certainly isn’t in this case.