Bryce Edwards: Why the Cannabis referendum is a problem

Bryce Edwards: Why the Cannabis referendum is a problem

The Labour-led Government’s decision to hold a referendum should be celebrated – even by those who wish to oppose liberalisation. It allows a societal debate on an issue of importance for many people. The Green Party should also be thanked for progressing the question.

That doesn’t mean the newly-announced referendum process for next year has been well-designed. Unfortunately there seems to be plenty of room for things to go wrong. There is certainly going to be confusion and uncertainly as a result of how the Government has decided to proceed with the referendum.

For the single best item on the referendum announced on Tuesday, see Henry Cooke’s Explainer: The cannabis referendum and why it isn’t binding. This clearly provides all the detail on what we know about the referendum and what is being proposed.

For example, Cooke explains that the proposal is about “legalisation” rather than “decriminalisation”: “It sets up a full legal process for the production, sale, and consumption of cannabis. Decriminalisation does none of this – instead just removing the penalty for consumption and possession, rather than actively setting up a regulated market.”

Plenty of other details are provided about aspects of the proposal to do with sharing cannabis with friends, using it as payment for a tradie (you wouldn’t be allowed to), and the legal control of products like cannabis edibles, lotions, and resins.

But the more important part is the issue of whether the referendum would be a binding one or just an “indicative” one. And Cooke explains that this particular referendum will only be “indicative” to whatever government is elected next year. And there will be plenty of potential for that government to ignore the referendum or indeed to change the proposed reforms, so that voters could end up getting something different to what they are voting for.

Cooke points out that Justice Minister Andrew Little has tried to argue otherwise – to make out that the referendum will in fact be binding – but “This does not conform with what basically anyone else describes as ‘binding’ – including his own justice ministry.”

The fact that significant changes to the proposals could still occur after the public have voted in the referendum is confirmed in the advice of the Ministry of Justice to the Government, which was quite explicit: “There is also a risk that the legislation, if introduced, could be changed significantly by the next Parliament or Government before it is enacted.”

This is examined by Thomas Coughlan, who writes: “It’s not unusual for legislation to change during the legislative process, particularly as interest groups and the public give their input at select committee. Many of these changes are minor and to do with the drafting of the bill, however some can be substantive. David Seymour’s End of Life Choice Bill is likely to be changed substantively; at first reading it applied to people with terminal illness or a grievous and irremediable medical condition, but it’s likely to be restricted to just terminal illness when it returns to Parliament for its second reading” – see: Non-binding referendum open to many changes.

This article also quotes constitutional law expert Graeme Edgeler suggesting that voters cannot trust that the referendum will lead to the changes: “It’s exactly as binding as any other political party promise prior to an election”. The article also reports that “Edgeler noted that it was possible a party, likely National, could interpret a ‘yes’ vote as a vote for change, but enact substantively different legislation.”

Andrew Little also admits that changes to the proposed cannabis rules – such as the age threshold of 20 years – could occur after the public had voted, saying “For departure from the policy there would have to be a very compelling case to do so… I can’t believe there would be any compelling case to reduce that, there would have to be a compelling case to increase it”.

Coughlan’s article quotes Prime Minister Jacinda Ardern being tighter about post-referendum changes being made to the rules: “On the principles that have been determined we need to stick to those so that the public have some assurance so that what they vote for would then either not proceed or does proceed… We need to give the assurance to the public is that the core principles and substantive policy decisions will remain the same”.

Green Party Drugs Spokesperson Chloe Swarbrick is also reported as believing that “it was unlikely that any party would want to substantially alter legislation put to the public in the 2020 referendum”. Swarbrick says “There would be substantive political cost” for any party making substantial changes to what the public had voted on.

Nonetheless, it seems voters are being asked to trust the politicians. Blogger Pete George is unhappy with this: “They are asking voters to trust that politicians will honour the will of the voters, some undetermined time after the next election. That doesn’t fill me with confidence. It looks like the Greens have got as much as they can, but NZ First are not as committed to voters deciding via referendums as they have made out, and Labour have allowed a Clayton’s binding referendum to be proposed. National don’t look trustworthy on this either, with the positions of Simon Bridges and Paula Bennett shifting at a car barking rate” – see: Cannabis referendum – trust the politicians?

Blogger, No Right Turn, thinks the exercise has turned into a farce, suggesting that the Labour Party has gone with a non-binding referendum as a soft-option in which they don’t have to pass contentious legislation that might lose them votes: “they don’t want to pay the political cost of actually making it happen, preferring for change to happen by magic instead. And so instead of a binding referendum with certainty not just about the proposal, but that it will actually happen, they’re giving us a glorified public opinion poll with no certainty at all. And under those circumstances, I’m not sure why anyone should bother participating in the farce” – see: Not binding.

He also argues that the decision by the Government to make the referendum non-binding was a strategic one, designed to encourage people to vote for Labour, New Zealand First or the Greens, or risk the referendum result being ignored by a National government: “In other words: if you want cannabis legalised, you have to re-elect the government. And so a binding referendum has been transformed into a naked scam for votes, so Labour Ministers can keep their jobs and their one-percenter salaries. They are treating the public with utter contempt here. And we should punish them for it” – see: The fix.

Other commentators are actually very happy about the non-binding nature of the referendum. Newstalk ZB’s Mike Hosking argues that it means a vote for change might not actually result in change: “the good news in the government’s cannabis vote announcement is we are voting on proposed legislation that will be enacted only if this lot gets back into power. It potentially won’t be enacted as voted, or indeed at all. It’s important to understand the nuance of all of this. What we will vote on, and what will pass in the Parliament, are two very different things. And that is, of course, if there is a yes vote. And this is where New Zealand First will once again save us – they will ‘CGT it’ if the three pronged coalition is re-elected” – see: There’s hope we can stop the legalisation of cannabis.

The Government has deliberately decided to go for the more confusing and uncertain option. Cooke explains in his article: “The way to avoid this situation would have been to pass a bill enacting the law changes now, but include a clause that means it only has power if the referendum returns a ‘yes’ vote. This is called a ‘self-executing referendum’ and is how the referendums on MMP and the flag were designed. A ‘self-executing’ referendum was the preference of the Green Party during negotiations.”

That’s why a lot of commentators are seeing this as a major loss for the Greens. Barry Soper says the result of the referendum passing will be uncertain: “what finally ends up in the mix is anybody’s guess. So this isn’t the binding referendum the Greens signed up for when they agreed to give the Government the numbers to take office” – see: So-called binding cannabis referendum latest dead rat for Greens to swallow.

Claire Trevett suggests today that the Greens naively and mistakenly trusted New Zealand First would support the referendum being binding (in a trade-off for the Greens voting for the “waka jumping law against their own principles”) – see: Cannabis referendum ‘stoners tax’ could be golden haze for the Government (paywalled).

According to Trevett, New Zealand First then vetoed the referendum being binding. She says that a Cabinet meeting in December of last year actually made the decision to make the referendum binding, but Winston Peters was overseas at the time, and when Cabinet next met the decision was reversed.

Here’s the key part: “What seems likely is that NZ First realised it would have to vote in favour of that legislation to legalise cannabis rather than treat it as a conscience issue. That is something many of its MPs would not easily stomach. It also noticed the Greens’ agreement did not promise a binding referendum, but simply a referendum. Words matter, as Peters constantly says. So what was delivered was the promise of draft legislation which may or may not be pursued in the next term.”

This is a big problem according to former Cabinet Minister Peter Dunne. In a column looking back at the history of government-initiated referendums, he says that this “will be the first Government-initiated referendum not to have an immediate definitive outcome. Despite being styled as a binding referendum, it will, in reality, be no more than an indicative vote” – see: Sophistry and bollocks on the referendum (paywalled).

Dunne outlines a lot of the uncertainty and confusion that could result from the way the referendum process has been established, especially in regard to what happens with the Misuse of Drugs Amendment Bill currently before Parliament.

He laments that this was entirely unnecessary: “All this uncertainty creates a potentially extraordinarily confusing situation, which could have been avoided had the specific law been in place before the referendum, to be triggered by a positive vote. Everyone would have known not only where things would stand once the law changed, but it will also occur immediately, removing instantly the uncertainty likely to accrue from the inevitable post referendum delay and confusion the government’s current approach will surely cause.”

In conclusion, Dunne ponders whether this will be just another in a list of promised reforms that haven’t worked out under this government: “Is cannabis law reform therefore about to join welfare, tax reform, electoral reform and a raft of other things this Government says it would ‘love’ to do properly, but, when the crunch comes, just cannot ever quite manage to bring together in a cohesive and comprehensive way?”

Finally, for the two must-read constitutional analyses of whether it’s a problem that the cannabis referendum isn’t binding, see Graeme Edgeler’s What we know about the cannabis referendum in 10 easy questions, and Andrew Geddis’ Sorry, but the cannabis vote is going to look a lot like the flag referendum.