Submission on DIA Long Term Insights Briefing on Participatory Democracy
About the New Zealand Council for Civil Liberties
The New Zealand Council for Civil Liberties is a voluntary, not-for-profit organization which advocates to promote human rights and maintain civil liberties.
Introduction
The Council promotes a vision of Aotearoa New Zealand as a democratic and pluralistic society where the rights and liberties of all people are respected. The Council recognises:
Aotearoa New Zealand is a colonised land; and
Te Tiriti o Waitangi as the founding document of Aotearoa New Zealand.
The objects of the Council shall be to:
promote human rights including assisting in the maintenance of civil liberties;
work to eliminate the infringement of people’s rights, and promote effective remedies following any breach, for the benefit of the public;
encourage and support debate and dialogue within Aotearoa New Zealand on civil liberties and human rights; and
educate people on issues and events arising from treaties and legislation on human rights and civil liberties.
There is a strong connection between the Council’s objects and the issue of participatory democracy. Article 19 of the International Covenant on Civil and Political Rights guarantees people’s freedom of expression – which means their right to seek, receive and impart information. In Aotearoa New Zealand, this has been translated to our laws in a number of forms. Most obviously, in section 14 of the NZ Bill of Rights Act 1990. Giving day-to-day practical effect to this right is the Local Government Official Information and Meeting Act 1987 and the Official Information Act 1982. The explicit purposes of these laws are to strengthen the ability of people and civil society organisations to participate in local democracy and to access official information in order to do so. The purposes of the Official Information Act 1982 and the Local Government Official Information and Meetings Act 1987 are “to increase progressively the availability to the public of official information” in order to “enable more effective participation by the public in the making and administration of laws and policies”, and “in the actions and decisions of local authorities” respectively.
Long Term Insights Briefing on Participatory Democracy
The Council believes the future of community participatory democracy in Aotearoa New Zealand is important and worth exploring in a Long-term Insights Briefing. The ability to participate in the decision-making of central and local government is a fundamental part of our democratic systems.
The Council notes that under Te Tiriti o Waitangi, all government agencies have an obligation to conduct co-governance in meaningful ways. That obligation goes beyond consultation or simple participatory democracy. Government engagement, policy and decision-making practices need to better reflect Te Tiriti o Waitangi and partnership obligations. Māori are still not engaged in co-governance participation in a substantive way in a number of areas, including local government. Review of the Local Electoral Act on how to provide for better representation is needed, as indicated by recent discussions at Rotorua Lakes Council.
The Council believes that steps suggested recently for the next Open Government Partnership (OGP) National Action Plan (NAP) would help strengthen the ability of the general public to participate effectively in our democracy. The Council believes that open government is good in and of itself, in addition to being good for democracy, and is an essential component to defending and enlarging civil liberties. We want everyone to have access to sufficient information to prove to themselves that their rights, and those of their families and communities, are being respected. The Council suggests its own and other civil society suggestions to the OGP NAP be considered by DIA in preparing the draft of its LTI Briefing.
The Council suggests signing up to the UN Aarhus Convention on access to information, rights to participate in decision making, and access to justice on environmental matters. This would provide a backstop against people being shut out of planning processes affecting the environment. It is likely that in some places the Convention would not only safeguard minimum standards, but would raise the requirements for openness. As the two closely related problems of climate change and biodiversity collapse become increasingly urgent to address, we may see pressure to act through regulation or other legislative measures. In a democracy, the legitimacy of these measures rests on public involvement in their development and implementation. The Aarhus Convention helps cement public rights, which in turn will help ensure democratic legitimacy. Environmental issues will continue to be of paramount importance over the next ten years and beyond, and opportunities to enlist public participation and support will be essential.
Mandatory Consultation and Participation Standards
The Council believes the Government needs better mechanisms for consultation and participation across government. There is wide variation in the quality of public consultation undertaken across the public sector and inconsistent information sharing. As well as policymakers and service designers not hearing from affected groups and individuals, which may result in gaps in their understanding of the issues, and flawed policy options or services, it increases the likelihood of community opposition to proposals. The Council also recognises that government consultation can stretch the resources and capacity of many communities and civil society organisations so that they are unable to respond effectively or in a timely manner. We experience first hand consultation fatigue, frustration at being excluded from closed consultations, frustration of having to prioritise our limited resources across many consultations, and of learning consultations after their deadlines have passed. Our peers freely share all of these concerns with us.
The Council believes the situation would be improved by the development of mandatory consultation standards with clear rules, together with funding available to support community participation. Standards could include minimum consultation periods and specify how people would be informed of the opportunities for consultation, and different levels of involvement. Better curation and use of the existing central location online for consultation opportunities with agencies would also help. The Council notes that sadly the DIA did not use the consultation listing tool on the DIA-maintained govt.nz website to alert people to its consultation on the Long Term Insights Briefing. Neither has any other government department. Clearly a voluntary or ‘encouragement’ approach to agencies that they list their consultations on this website has failed – even within the sponsoring department – thereby making the case for mandatory standards unanswerable.
The Council believes the work by the Policy Project based in the Department of Prime Minister and Cabinet (DPMC) has produced some useful aids for engagement, including some tools and resources. We note this work draws on the International Association for Public Participation spectrum, and encourage DIA to also consider how local authorities, and the Department itself, can move its public engagement activities up this spectrum to the involve, collaborate and empower stages. To date, there has been limited promotion or requirement for agencies to put the Policy Project’s guidance and tools into practice. Some people could say that Covid-19 and its management have delayed this. Others would point out that this should be a priority now as successful implementation of health strategies relies on effective community engagement.
Methods to support Participatory Democracy
The Council believes community participation in democracy is too important to be left to engagement using digital technology only. This would exclude the estimated 20 percent of the adult population unable or unwilling to use the internet to meet their needs. Disabled people, seniors, Māori and Pasifika people, and people living in social housing are more likely to report no or insufficient access to the internet and digital technology. These groups are already underserved by existing policies. We need to hear more from them, not less.
While there are good uses of digital tools to connect people and communities for deliberative democracy, if participation in democratic processes is about building social cohesion then in-person or kanohi a kanohi contact is vital to establishing relationships and trust. This is particularly the case in cultures with traditions relying on group discussions such as hui and talanoa. There are also people for whom digital technology will not work, because of physical or other barriers. The Council believes the government has a responsibility to plan and use non-digital methods as well as digital ones to enable people and communities to participate in democracy including consultation exercises.
The Council sees three areas that could affect participation using digital technology:
Greater access to information and ability to participate by people who have good access to digital technology and skills, confidence and motivation to use it;
The government increasing resources to ensure digital inclusion for digital democracy and services and devices are available, affordable and accessible; and
Provision of alternative options for participation in democracy and services for people who are unable or unwilling to use digital devices and services. How does the Government plan to hear from and involve people who are not online or who won’t or can’t use digital technology?
The Digital Strategy for Aotearoa, with key themes of Mahi Tika (Trust), Mahi Tahi (Inclusion), and Mahi Ake (Growth) may bring a greater focus on some of the barriers to digital inclusion and participation in digital services. To be successful this will require collaboration with the communities involved, such as disabled people with different communication requirements for whom accessibility and affordability of online services is vital. Work to ensure affordable and appropriate internet access, digital devices, and accessible services, should also address issues of poverty and insecure housing that may block efforts to acquire and maintain digital connectivity.
Work on skills should mean not just basic digital skills to use the internet and digital technology, but literacy and confidence and ability to use digital services. If digital information is too complex, or not relevant, or there are accessibility or connectivity challenges, then people won’t use digital services. If the language used is too complex or there are no translations, such as conveying information in NZ Sign Language, then some people won’t be able to participate. Under Covid-19 rules, people have been denied opportunities to use free internet services such as public libraries too.
The Government should provide accessible documents or options for information. When documents are only made available in a PDF format, this creates problems for people who are blind or have vision impairments as many PDFs cannot be read by screen readers. People who were born deaf and whose first language is NZ Sign Language will understand less when they have to consume information in PDF format.
Questions and Future Directions
Better rubber-stamping exercises won’t create better participation. Alternative models of sharing power and decision-making are required. What does effective community participation in a democracy look like? Does it mean business as usual but better? Or more co-partnerships with Te Ao Māori? Use of Citizens’ Assemblies and digital decision-making tools? Should the government provide resources to enable public sector advisors to support communities and civil society to develop locally relevant solutions? How far should community participation in democratic decision-making go?
Developing the capacity of civil society to actively participate in and facilitate self-government at different scales would strengthen the democratic system and legitimacy of policy choices. People must be helped to actually participate and make a difference. Civics education is all well and good but democracy is learnt by doing.
Recommendation
The New Zealand Council of Civil Liberties recommends that;
Instead of a limited consultation to develop the Briefing, that an open process, following established design principles for deliberative democracy, are used to develop interim consultation standards be initiated with wide representation, and that a series of regional hui open to anyone whether in person or on an accessible platform be held; and
The Department engages in a collaborative project on more active models of participatory democracy such as citizens’ assemblies.
