The Government's proposed model for the forthcoming referendum on marijuana legalisation isn't ideal. But the difference between it and the ideal really is pretty minimal.

Today we sort-of found out what we are going to get to vote on at this election’s “reeferendum”. We are going to get to say whether we want to have an as-yet-unwritten Bill allowing for the legalisation of cannabis passed into law by whatever Parliament gets elected at that election.

Well, that’s cleared that up then! 

Only, things aren’t really quite as up-in-the-air as my opening paragraph might suggest. We now know that when we come to cast our votes in 2020, there will be a finalised Bill for us all to see that sets out the proposed legalisation regime’s details. That Bill will be created over the next few months, after a process of (in the words of the cabinet paper behind the Government’s decision) “limited stakeholder … consultation” regarding its contents. Nevertheless, we’re told that any Bill will include:

  • A minimum age of 20 to use and purchase recreational cannabis;
  • Regulations and commercial supply controls; and,
  • Limited home-growing options.

Even if a majority of us approve of whatever Bill is put together, it then will need those MPs elected at the next election to vote to pass it through the full legislative process. And as the cabinet paper says, there will be “some moral imperative, but no obligation, to enact the legislation”. 

Let me say at the outset that this process does not accord with what I’ve previously argued is the ideal. I’d have liked to have seen a bill introduced, considered by select committee with public input, and passed by the House  before the referendum vote. If a majority of us voters approved of that measure at the 2020 election, then it automatically would become a part of our law.

That was what happened with the change of electoral system in 1993; the vote for MMP automatically brought the Electoral Act 1993 into force. It is what would have happened had a majority of us supported the Lockwood design for our national flag back in 2016. I still think it’s the best (in the sense of simplest, tidiest and most allowing of public deliberation) way to run a referendum on law change.

However, the cabinet paper behind today’s announcement indicated that the time-frame to enable this outcome would be somewhat squeezed. That’s something of an indictment on the government’s policy formation process; they’ve had over 18 months to get a lot further down the track than they are right now. I’m not minded to give them a pass on that basis.

More pertinent is that Chloe Swarbrick's admission there was “no consensus” on adopting this “legislate, then let the people endorse” approach indicates that one of the governing parties was loathe to publicly vote for a bill to permit cannabis legalisation in advance of any referendum. We needn't speculate for too long on which party that might be, because I think it will have the words “New” “Zealand” and “First” in it.

Which places us in a (to my mind) less-than-ideal place. Having said that, let’s not overly catastrophise the issue, shall we?

Any wailing and gnashing of teeth that the announced process means the referendum result now will be “non-binding” seems entirely misplaced to me. There simply is no such thing as a truly “binding” referendum in our system of parliamentary supremacy, because any parliament may undo what a previous parliament has decided.

Even if the current parliament were to enact legislation to legalise cannabis, and even if this were to be approved of by voters at a referendum, the next parliament is entirely free as a legal matter to retain or repeal it. Just as the next parliament is entirely free as a legal matter to enact or ignore any bill that the public say they want to see become the law.

Any difference in the two situations is then politico-moral in nature, not legal. And unless you can somehow show this difference means that a referendum result will in practice prevent a future parliamentary majority from repealing an already in force Act it dislikes, but will not in practice force a future parliamentary majority to enact into law a bill it dislikes, then you cannot meaningfully say one outcome is “binding” while the other is not. Maybe there is evidence out there to prove that empirical claim. But I’m not aware of it.

“Ah-ha!”, you may say. “But there is still a difference in that when an Act already is passed before a referendum, the public can know the details of the final law before endorsing it in a way that is not true when the Bill still has to be enacted.” On its face, there is something to this point.

On the government’s chosen approach, any voter approved bill will still have to be introduced in that form and go through select committee hearings. As the cabinet paper itself says, “there is … a risk that the legislation, if introduced, could be changed significantly by the next Parliament or Government before it is enacted.”

Once again, however, we have to compare apples with apples. For consider the Electoral Act 1993 that came into force upon the public voting in favour of MMP. That legislation actually was not then the law under which the 1996 election was contested.

Instead, Parliament made a large number of amendments to the voter-endorsed legislation through the Electoral (Amendment) Act 1995. Such amendments included changing the form of the ballot paper and creating an entirely new regime for controlling political party election spending. The fact that none of them were endorsed by the voters at the referendum did not prevent parliament from acting.

So, while it is true that any bill endorsed by the voters at the referendum may be changed by MPs before being enacted into law, so too can (and has) an existing Act endorsed by the voters at a referendum. If there is a difference between the two situations, then it is once again a politico-moral one; can it be demonstrated that in practicethe former is more likely to occur than the latter?

Which means that I’m simply not all that upset about the Government’s chosen process here. I’d have preferred the “legislate, then let the people endorse” process as a simpler, tidier and more publicly discursive one. However, the difference between that ideal and the proposed model really isn’t that great. 

Voters will have a confirmed piece of legislation that sets out in detail (including precise legal terminology) the proposed form legalisation is to take. As a matter of politico-moral practice, I simply cannot see a future government of any stripe ignoring a strong vote in favour of this bill and refusing to introduce and enact it. Just as I cannot see a future government of any stripe repealing an Act already in place and endorsed by the voters. And in our primarily political constitutional environment, if the politico-moral constraints on future parliaments are the same in each case, then any differences in form become largely irrelevant.

Nevertheless, let me close with a prediction about where the debate on this topic likely will go over the next little while.

Remember all those anti-colonialist, left-wing types who exhibited a strange aversion to stylised ferns once John Key set up a referendum on the question of what flag New Zealand should have? Not, of course, that they were fans of keeping the union jack on our national emblem; rather, “the process” meant that they now couldn’t possiblysupport a proposed change to that state of affairs.

As researchers from Auckland University demonstrated (full paper here), such objections largely represented after-the-fact rationalisations. Rather, the strength of a person’s identification with either Labour or National was a strong predictor of where they ended up on the flag change question.  In short, if you were tribally Labour, then the flag change process was bad because it was a National proposed idea opposed by your party leadership.

Well, watch out in the coming months for a mirror effect in relation to the cannabis referendum, as various small-government, “classic liberals” suddenly discover with deep regret that the government’s chosen process for change makes the status quo on cannabis regulation a preferable option. And recall that there really is nothing new under the sun.

Comments (5)

by john common on May 07, 2019
john common

A bit off-topic, but I was surprised to read the outcome of the Auckland University study as cited. Perhaps the political divide in Aotearoa might better be described as either tribally National, or tribally anti-National? Anyway, as one of the later, many of the people I know were at first keen for the country to adopt a new flag regardless of whether or not it was the National Party pushing the flag change process. Yet in the end (and as Finlay MacDonald observed at the time) the proposed new flag actually managed the unexpected feat of making the current flag look like a model of good design.

by Ross on May 07, 2019
Ross

As researchers from Auckland University demonstrated, such objections largely represented after-the-fact rationalisations. Rather, the strength of a person’s identification with either Labour or National was a strong predictor of where they ended up on the flag change question.  In short, if you were tribally Labour, then the flag change process was bad because it was a National proposed idea opposed by your party leadership.

I don't think so. In only 6 out of 71 electorates did voters support a change of flag. (Labour can only dream of that level of support!) Even in safe National seats like Helensville, Coromandel, Hunua, Rodney and Pakuranga, voters supported the status quo.

I agree with John above. The proposed flag showed a lack of imagination and seemed to pander to John Key's preference. That was no way to run a referendum.

by Dennis Frank on May 08, 2019
Dennis Frank

We'll get to see if NZF are capable of being progressive as well as conservative, eh?  The old `walk & chew gum simultaneously' thing.  If they manage to achieve the combination, their prospect of survival will be enhanced considerably.  Maestro political scientist & NZF chief of staff Jon Johansson is the key to the process.

I give the coalition credit for providing those three principles that will frame the legislation - let's everyone know well in advance what they are likely to be voting for.  Not only an excellent example of realpolitik, it sends the signal that NZF has already endorsed them.  Unless some canny media operative elicits a confirmation of this from Winston, it puts NZF in the clever position of having 50c each way.  Their conservative base gets to think that they are an effective handbrake on liberal idealists, while progressive centrists can commend them for ensuring progress on a sensible basis.

I agree with Andrew re his preference for a fully prescriptive basis for the referendum, but the basis the coalition is providing is a good-enough alternative, I reckon.  The right of folks to use the old magic herb will be restored, they also get the right to grow their own, and market suppliers get regulated:  these three principles are the essential basis for progress.  Once that is achieved, focus will shift onto the extreme potency produced by genetic engineering or whatever, and how regulation can limit damage to users.  Wrestling the devil in that morass of details to the floor and pinning it will require considerable expertise from public servants.

by Lee Churchman on May 08, 2019
Lee Churchman

Yet in the end (and as Finlay MacDonald observed at the time) the proposed new flag actually managed the unexpected feat of making the current flag look like a model of good design.

Well, that's because the government decided to empower a group of the "great and the good" to decide on the finalists, and these people seemed to lack any basic knowledge of flag design (or design for that matter). However, they were supposed to be in touch with "New Zealandness", which just goes to show how little gut feelings can accomplish. 

I still think it was a missed opportunity. My design did make the papers a couple of times though, so not a complete loss. ;-)

by Nick Gibbs on May 10, 2019
Nick Gibbs

"As researchers from Auckland University demonstrated (full paper here), such objections largely represented after-the-fact rationalisations."

and

"I don't think so. In only 6 out of 71 electorates did voters support a change of flag. (Labour can only dream of that level of support!) Even in safe National seats like Helensville, Coromandel, Hunua, Rodney and Pakuranga, voters supported the status quo."

Confirmation then that academics couldn't tie their own shoelaces. Thought so. I imagine there's an academic paper somewhere that proves this.


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