Now a focus of national debate, the Pandora's box of ACT’s Treaty Principles Bill exposes deep society division, the dangers of both judicial activism, and populist referenda. Ross Stitt thinks we should heed the ugly lessons of Australia's failed Voice

Prime Minister Christopher Luxon has ruled out supporting the ACT Party’s Treaty Principles Bill beyond the select committee process. That means no defined Treaty principles and no referendum to adopt them.

But ACT leader (and future Deputy PM) David Seymour’s not so sure. He thinks Luxon could yet bow to public opinion on the issue. ‘The bit I don’t believe is he won’t change his mind if the public really wants it’, Seymour said of the PM.

Australia’s in no position to advise New Zealand on race relations. But when it comes to ACT’s proposal, kiwis would do well to consider recent history across the ditch.

2023 saw a national referendum to amend the Australian Constitution by creating an Indigenous ‘Voice’ to advise the government. Voters rejected the proposition 60/40.

The referendum process was a dispiriting affair, and many lessons were learnt. Three stand out for New Zealand.

First, a referendum on a contested issue can be highly acrimonious. And deeply damaging. It creates an environment where public debate frequently descends into public abuse. Polarisation increases and extremism thrives. Misinformation and disinformation from all sides proliferate on social media.

Crucially, a referendum is much worse than just a national conversation among politicians, experts, and interested parties. Why? Because a referendum involves two sides competing to convince millions of people to vote for their case. That intense competition amplifies toxicity and intolerance.

The second lesson from Australia is that a referendum is a singularly unsuitable mechanism for addressing complex policy issues. Many voters have neither the time nor the inclination to think about such issues. Accordingly, their decision in a referendum is not the result of thoughtful analysis or real understanding.

A complex proposition also leads advocates on both sides to oversimplify the issues, thereby further undermining the value of the final vote.

Uninformed voters. Oversimplified arguments. That’s no way to formulate important public policy.

That’s why we have parliaments. Through elections, citizens appoint representatives who have the time and resources (and hopefully ability) to investigate and analyse complex issues and then develop good policies. If the citizens don’t like those policies, they can eject their representatives at the next election.

There’s always a role for public debate but public decision making via referenda is only appropriate for simple binary issues like same-sex marriage or legalising marijuana.

Few issues seem less suited to a referendum than Te Tiriti o Waitangi – a nearly 200-year-old contested ‘agreement’ with versions in two languages; a political document that’s been referenced in legislation and subject to judicial and academic commentary for decades. And New Zealand has undergone massive change since the Treaty’s signing, including mass migration, widespread intermarriage, the Treaty settlement process, and development into a modern liberal democracy.

The ‘principles’ of such a document plainly don’t lend themselves to any sensible yes/no vote in a referendum. Therefore, Prime Minister Luxon should stick to his decision not to support a Treaty principles referendum, irrespective of what future polling tells him.

But is other action required?

In a Curia Poll last October, 60% of respondents said they would support ACT’s Treaty principles if asked in a referendum. That suggests considerable discontent with aspects of how the Treaty is currently understood and applied. That discontent contributed to the slump in Labour’s vote at the last election, and the rise of ACT and NZ First (and possibly National).

This is where the third lesson from Australia’s Voice referendum is relevant. That referendum highlighted several fault lines in Australian society. The most obvious was between inner-city residents, who largely favoured an Indigenous Voice, and those from the outer suburbs and regions, who did not. The former are generally wealthier and better educated, and more supportive of progressive causes.

The Voice also received the overwhelming endorsement of Australia’s academic, business, legal, religious, and cultural institutions. Many community leaders, celebrities, and high-profile citizens actively campaigned for a Yes vote.

Despite this high level of institutional and establishment support, the Voice proposition failed 60/40. This outcome, a surprise to many, was seen as evidence of a disconnect between inner city elites and the majority.

Moving forward on indigenous reconciliation in Australia necessitates bridging this disconnect.

Given the cultural similarities between the two countries, it may be that this disconnect or something akin to it exists in New Zealand; that ideas widely accepted in Wellington and the inner suburbs of Auckland are less popular elsewhere.

The Curia Poll and the last election result indicate that many kiwis strongly oppose initiatives like Labour’s co-governance model, a separate Māori Health Authority, and ‘cultural impact assessments’ under the Resource Management Act. Yet many other kiwis (both Māori and non-Māori) believe the Treaty requires such initiatives. Some demand greater self-determination for Māori, insist that ‘sovereignty was never ceded’, and even call for a Māori Parliament.

There’s a stark division here with major implications for the future of New Zealand. It’s not new, but it only achieved its current prominence when the last Labour government implemented a suite of overtly pro-Māori policies.

Co-governance had long existed in various forms from Māori seats in parliament to the co-management of assets such as the Waikato River. However, it had never been the focus of national attention or been seen as part of a broader agenda for Māori self-determination.

The latter reflects ideas and opinions that had been around for many years in places like the Treaty of Waitangi Tribunal and NZ’s universities. For example, it was a decade ago that the Tribunal expressed the view that the signatories to the Treaty did not cede sovereignty to the British Crown.

This was unproblematic while these ideas and opinions existed only in ‘theory’ i.e. without specific legislative consequences. It was when Labour sought to put them into ‘practice’ that trouble emerged. The government made the mistake of thinking it could make substantive changes without taking the country, and its own voter base in particular, with it.

The response of the new coalition government is simply to unwind Labour’s pro-Māori policies as quickly as possible but without addressing the underlying clash of views on Te Tiriti o Waitangi. It’s a pragmatic approach, as demonstrated by Luxon’s move to fast track the abolition of the Māori Health Authority before the Waitangi Tribunal has a chance to pass judgement.

There’s real conflict here that’s hard to ignore. And even harder to resolve. However, just kicking the can down the road may be a recipe for greater conflict in the future.

A referendum is clearly not the answer. Nor is leaving the interpretation of the Treaty to the courts. Judicial activism is just as dangerous as a referendum and much less democratic.

Perhaps the government should step up and address the present dilemma. It’s certainly not a role Luxon wants but the outcome of the last election, his choice of coalition partners, and the Pandoras box opened by ACT’s Treaty Principles Bill, may make it difficult to avoid.

Parliament, in consultation with Māoridom and aided by a robust public debate, could undertake a comprehensive review of the role and meaning of the Treaty in the 2020s.

This would be a complex, lengthy, and at times divisive, process. Given history and the entrenched views on all sides, consensus would be impossible.

But for the sake of the country’s future, perhaps it’s time finally to seek some kind of lasting compromise.

*Ross Stitt is a freelance writer with a PhD in political science. He is a New Zealander based in Sydney. His articles are part of our 'Understanding Australia' series.