Is a referendum the best way to deal with cannabis law reform?

In theory letting the people decide on whether we liberalise our drug laws in relation to cannabis via a referendum sounds like a good democratic approach, but is it actually the best way to deal with it?

One problem is that our politicians do not have experience or a good history of letting the people decide. The flag debate and referendums were a shambles, in large part due to how our politicians stuffed things around.

Benedikt Fischer (Hugh Green Foundation Chair in Addiction Research and Professor, Faculty of Medical and Health Sciences, at the University of Auckland) looks at the cannabis issue –  NZ’s potential cannabis policy pitfalls

In New Zealand, the prospects of fundamental liberalising reform to cannabis prohibition are heading into an acute phase. In recent months, the Government has provided incremental clarification that the issues will be decided on through a public referendum to occur on general election day in 2020. Based on recent statements by the Prime Minister, this referendum will be based on a question on possible cannabis control reform to be drafted by Cabinet.

While a referendum is a legitimate means of decision-making on public policy, and has been applied in areas of drug control elsewhere, it is an approach that comes with distinct dynamics in terms of process – regardless of where one sits on the ‘opinion fence’.

Without question, dealing with cannabis control reform through a referendum is an unusual choice in the socio-political context of New Zealand, where few policy issues have been decided by direct democracy. Rather, New Zealand routinely develops or changes law or policy, including on many no-less fundamental or controversial topics, by relying on the standard procedures of its parliamentary democracy.

What makes cannabis control so unique or different that it requires such a special approach?

Our politicians have avoided addressing dysfunctional drug laws for decades. They have been sort of forced into doing something, but may see a referendum as a way of either sabotaging the process. CGT policy was dumped without going to an election with it as promised.

Yet irrespective of these general queries, and embracing the possible benefits of direct decision-making on cannabis legalisation ‘by the people’, there are various issues or possible pitfalls to consider.

First, in order for a referendum on cannabis reform to work and produce meaningful results, it needs to occur on the basis of a concise and clear question. This question, however, requires comprehensive foundational clarity regarding what overall cannabis reform plan the Government exactly intends to propose and implement. And this involves many devils hidden in many details.

For example, a legalisation model in which cannabis use, availability, production and product, advertising, etcetera, are only loosely regulated is very different from one where these essential parameters are tightly controlled and restricted.

One of several key challenges here will be to clearly convey the difference between ‘decriminalisation’ and ‘legalisation’ reforms for cannabis. Notwithstanding many – including leading politicians – viewing and using these concepts as if interchangeable, they are fundamentally different: While the former typically softens the punitive consequences for illegal drug use or sales, and commonly relies on ‘diversion’ measures like education or treatment programs, it retains their formal illegality. In contrast, ‘legalisation’ renders use and availability truly legal in principle, and relies mainly on regulatory measures for control and restrictions.

Public referenda, especially on controversial value issues with implications for society at large, like drug control, can be tricky undertakings.

But why are they tricky? Politicians have a habit of making things seem tricky when they don’;t want to take responsibility and do anything. I hope they surprise me, but I fear that the public will end up being manipulated and let down.

A referendum gives our politicians scope for messing up the decision making and then handing the blame to voters.

Returning to first-past-the-post mentality?

Smaller political parties are struggling to survive. Last election the Maori party and United Future dropped out of Parliament, having been a part of the previous government. Greens also had a major scare but managed to sneak in again.

Polls and public sentiment indicate that NZ First are in trouble of not lasting beyond this term. The first time they were in government (1996-1999) it turned to custard in the first term. The second time they were in government (2005-2008) they were kicked out of parliament by voters. They are currently consistently polling well under the threshold.

Rob Mitchell (Stuff): It’s tough at the TOP – no room for the new guys

We have also seen a return to a first-past-the-post mentality, says Massey University associate professor Grant Duncan.

“2002 was the high point for the minor parties,” he says, “but it’s going in the other direction, back to the two-party dominated system.”

That means a lot of smaller but still significant voices are being drowned out. As is diversity.

“The nature of the system does make it difficult for a new party to get over that threshold. And in doing so, if you take the Conservative Party for example, a lot of that was voters who would otherwise have voted for National or possibly for NZ First.”

Since the first MMP election, the only parties to succeed, outside of National and Labour, have been those created or led by sitting MPs; parties headed by political newbies have thrashed in vain against the 5 per cent party vote threshold.

The Electoral Commission has recommended reducing that to 4 per cent; Justice Minister Andrew Little will seek the public’s recommendation in a referendum at next year’s election.

The threshold won’t change for next year’s election. Is it a factor in excluding smaller parties from making it into Parliament? Yes. It is not only a high hurdle for any new party, it deters voters from backing new parties due to the unlikelihood they will make 5%.

Does the demise of small parties indicate that voters prefer a two party system?  I doubt that very much. Under MMP voters have always chosen a multi party government one way or another.

It may be that National and Labour dominate next election, and it’s possible one or the other could form a government on their own. But if that doesn’t work out well voters could easily swing back to smaller parties – if there are any credible parties around to pick up support.

Parties like TOP and the Sustainability Party may contest the next election. It is unlikely they will get into Parliament then, but it could lay the groundwork for a realistic bid in 2023, especially if the threshold is lowered.

The problem with lowering the threshold is that most voters prefer larger parties, so seem to have no interest in making things fairer for smaller parties.

1 News/Colmar Brunton have just polled on the threshold:

  • Too high 12%
  • Too low 13%
  • About right 64%

If there’s a referendum on it that could result in a ‘tyranny of the majority’ decision, where large and existing party voters choose to keep shutting out new parties from serious contention.

I don’t think this is necessarily ‘first-past-the-post’ mentality. It is more like people wanting their preferred party to have all the power.

Ill-informed du Fresne attack on Drug Foundation’s Bell over cannabis referendum

Karl du Fresne (Stuff) has taken a swipe at Ross bell of the NZ Drug Foundation, claiming “Ross Bell is not worried about decriminalisation of cannabis but by the thought of the drugs trade being contaminated by the profit motive”: If corporates are best-placed to deliver a safe cannabis market, is that so wrong?

Oh, dear. Ross Bell of the New Zealand Drug Foundation, after years of agitating for relaxation of the drug laws, is fretting that liberalisation might open the way to corporate domination of the cannabis trade.

Hmmm. Perhaps he should heed the old saying about being careful what you wish for.

Bell has long advocated a permissive approach to so-called recreational drugs.

His argument is that drug use should be treated as a health issue rather than criminalised. So you’d expect him to be thrilled that the Government has promised a binding referendum on decriminalisation of cannabis.

You can take it as read that the activists’ ultimate goal is decriminalisation of the drug altogether, and perhaps other drugs too. That’s how advocates of “progressive” social change advance their agenda: incrementally.

That’s a big step from the cannabis referendum, and a major ‘assumption’ based on nothing.

It’s a strategy that relies on a gradual softening-up process. No single step along the way, taken in isolation, is radical enough to alarm the public. Change is often justified on grounds of common sense or compassion, as the legalisation of medicinal cannabis for terminally ill people can be.

But each victory serves as a platform for the next. Once change has bedded in and the public has accepted it as the new normal, the activists advance to the next stage. The full agenda is never laid out, because that might frighten the horses.

That sounds like nothing more than general scare mongering based on nothing.

Now, back to Bell’s misgivings about where the cannabis referendum might lead.

It’s not decriminalisation that worries him. Why would it, when for years he’s been using his taxpayer-subsidised job to lobby for exactly that outcome?

No, what upsets him is the thought of the drugs trade being contaminated by the profit motive. A liberal drugs regime is all very well, just as long as the trade doesn’t fall into the hands of wicked corporate capitalists.

A stupid way to put things. there are legitimate and I think fairly widely held concerns over the commercialisation of cannabis. Alcohol is a good example of how an intoxicating substance can be legally pushed for profit.

Bell’s vision, obviously, is of something much purer and more noble, although it’s not entirely clear what model he has in mind. A People’s Collective, perhaps.

Another baseless assertion.

The parallels with alcohol are obvious. Both can cause great harm to a minority of users, although activists like to play down the adverse consequences of drugs other than alcohol. We don’t hear much, for example, about the devastating effects cannabis can have on the young or the mentally unstable.

I’ve seen and heard quite a lot about that. It’s a primary reason for suggestions that there be an R18 on cannabis – similar to alcohol age restrictions, where even 18 has been controversial.

But if we’re going to have an honest national debate about cannabis, the important thing, surely, is that it should focus on social wellbeing rather than being distorted by covert ideological agendas.

No evidence of ‘covert ideological agendas’, just an assertion targeting someone who has been quite responsible in promoting drug law reform.

Stephen Franks responds:

Russell Brown, one of the best informed advocates of drug law reform in the media joins in.

Going by this (and other ill informed people with their own agendas like Bob McCoskrie (Families First), I think we can expect a fairly knarly debate on the cannabis referendum.

We should welcome robust arguments against too much liberalisation of drug laws, but I hope we get a lot better attempts than this by du Fresne.

Poll – 60% support for “legalising the personal use of cannabis”

An agreement between Labour and Greens guarantees a referendum on the personal use of cannabis before or with the 2020 general election (it is looking likely it will be alongside the election).

A Horizon Research poll (commissioned by licensed medicinal cannabis company Helius Therapeutics) conducted in October shows majority support “on legalising the personal use of cannabis”:

  • Yes 60%
  • No 24%
  • No opinion 16%

That only a quarter say they would vote No is probably more significant than the Yes percentage.

Of course this could change when we know what the referendum question will actually be, when the public is informed, and the issue is debated (and no doubt activist groups will do their best to persuade for or against),

Questions about a regulatory framework were also asked.

  • 63% want a regulated market for legal cannabis with licensed operators
  • 68% want any tax revenue should go towards health services
  • 58% said penalties for breaking the law in a legal cannabis market should be about the same for breaking the law on alcohol sales
    28% support severe penalties
  • 40% support a  Government excise tax
  • 39% want the legal age to buy cannabis to be 18
  • 18% supported the Government owning and controlling all production and sale of cannabis

Use of cannabis:

  • 10% use cannabis daily
  • 55% have used cannabis at some time

I think I would support for change (depending on what the referendum choice is. I have never used cannabis, I just think that the current situation is working poorly and the law needs to be reformed.

…of 995 adults 18 and over, and weighted to be representative of the population at the 2013 census. The margin of error is 3.1 per cent

Source – NZ Herald

Binding referendum on cannabis in 2020

The Government has left it as late as possible but have now confirmed there will be a referendum on personal use of cannabis alongside the 2020 general election. I’d have preferred it sooner but at least this allows for proper legislation to be agreed on by Parliament (if this is how it is decided it will work, and pending the referendum result) and for a proper debate to take place.

There have been some complaints )for example from Simon Bridges) that it is a cynical distraction from the next election but I’m sure people are capable of deciding on multiple decisions at the same time. It will still be much simpler than a local body election.

RNZ:  Binding referendum on legalising cannabis for personal use to be held at 2020 election

It’s not actually clear what the referendum will be on.

Justice Minister Andrew Little says the Electoral Commission will now get on and start planning for it.

“Having made the decision now, the Electoral Commission has put together a budget bid for the budget process next year. So … we’ll now process that budget bid. It obviously will attract budget confidentiality, so we’ll know about that next May.”

Chlöe has been doing a lot of work in helping this happen.

We will have to see how this will work, but it is a big step in the right direction.

National Party leader Simon Bridges questioned the government’s motivation for holding the referendum at the same time as a general election.

“I’m pretty cynical that you’ve got a government here that wants to distract from the core issues of a general election like who’s best to govern, their actual record in government over the last three years, and core issues around the economy, tax, cost of living, health, education, law and order.”

FFS, we can deal with more than deciding which politician is the least dweebie and lame, or which party is up with changes on drug laws happening all around the world. .

And he said the government had already effectively decriminalised cannabis through the medicinal cannabis bill.

“Now you’re allowed loose leaf out on the streets and the truth is they’ve said to police, you don’t need to prosecute this so right now, if someone’s smoking cannabis outside a school what are the consequences? What’s the message?”

This is a pathetic attempt at scaremongering, nearly as bad as Bob McCoskrie.

Bridges may pander to people most likely to vote national anyway, but he risks alienating a lot of swing voters, and especially younger voters (voters under 70).

There is obviously no guarantee which way the vote will go, but at least this means that people should get to decide. At last.

Government considering triple referendum:

On Q+A last night Andrew little revealed that the Government is considering a triple referendum that would include questions on Euthanasia, Cannabis and MMP Electoral reform.

Hopefully the MMP question would be on lowering the threshold.

Little didn’t say whether this would be before or with the next General Election, but I think it would be far opreferble to have a separate non-postal referendum.

I guess it would be to much to expect also including a referendum on becoming a republic.

Flag change debate demonstrates partisan support shifts

The flag change debate and referendum became dominated by partisan shifts in support – one of the more significant being Labour’s shift from supporting flag change to opposing it, which appeared to be more an anti-John Key position shift.

Analysis shows that many voters shifted their preference for change based on their party support – the result was swayed by partisanship.

So it is imperative that future referendums, like the upcoming (some time) cannabis referendum, does not become a political shit fight. To avoid it being a partisan pissy contest the party leaders should make it clear it is a conscience type vote.

NZH: Follow the leader: What the flag debate revealed about our personal politics

When it comes to issues as seemingly apolitical as changing the flag, the party leaders we back can still change the way we sway.

That’s according to a study published this month by Kiwi researchers, who used the much-debated flag referendum to investigate how partisanship can shape our own attitudes and preferences.

“Our research shows that the positions taken by political leaders and political parties can have an important impact on peoples’ preferences, even on issues that are supposed to reflect personal preferences,” said study leader Nicole Satherley, of the University of Auckland.

The longitudinal New Zealand Attitudes and Values Study (NZAVS) happened to include questions measuring voters’ attitudes about changing the flag in 2013, before the referendum was introduced, and again in 2016, after it had been introduced.

Satherley and colleagues capitalised on these data, examining participants’ support for changing the flag (“yes,” “no,” or “unsure”) and the degree to which participants in the study also supported or opposed the National and Labour parties.

As the researchers hypothesised, the data showed that participants tended to shift their opinions to align with those of their preferred political party.

Overall, 30.5 per cent of National voters and 27.5 per cent of Labour voters moved away from the position they originally reported in 2013 to become closer to, or consistent with, the position endorsed by their party leader.

In other words, the researchers found that support for either National or Labour predicted whether individual voters remained stable in their views or changed over time.

Relative to remaining opposed to changing the existing flag design, strong National supporters were more than three times as likely to shift their opinion in favour of a flag change compared with those who expressed low support for National.

At the same time, staunch Labour supporters who originally backed the change were more likely to shift toward opposing the change, compared with participants who expressed low support for Labour.

And strong party supporters whose opinions were already in line with the party position were less likely to shift their attitudes over time compared with participants who expressed low levels of party support.

Can the party leaders promote a true non-partisan choice-of-the-people referendum on recreational use of cannabis when that eventually happens (it must be before or with the next general election in 2020)?

If we have a referendum on euthanasia can that be non-partisan?

The researchers said the findings raised some important questions for future research, such as what motivated party supporters to switch their votes, and whether they did so to align themselves with their party leaders, or just to combat the opposing party.

These are important tests, because when we get around to deciding things like constitutions and becoming a republic it will be critical that the debates and referendums are no hijacked by political parties for their own benefit.

Much will depend on how the party leaders deal with any referendum.

Peter Dunne on recreational cannabis regulation

On Q+A last night peter Dunne was asked where he now stands on cannabis use and law.

Corin Dann: You’ve been on top of this issue for many years, as a Minister, under a lot of pressure from both sides. Where do you sit now personally on the issue of cannabis?

Peter Dunne: I’ve set my view out probably pretty clearly over the last two or three years.

I think we can move to to treat cannabis for recreational purposes in a regulated market, where we determine the level of risk, where we determine how it’s to be sold, to whom it’s to be sold, and we can have a limited amount of personal cultivation and personal manufacture, pretty akin to the market we have now for tobacco actually.

It keeps it under tight control and the government…

Corin Dann: R18…

Peter Dunne: no advertising, price set by the state effectively…

Corin Dann: It’s interesting that you;ve reached that position. Were you there ten years ago?

Peter Dunne: probably not ten years ago but i think over the last five years I’ve moved to that.

But can I just say one thing. For the referendum to be effective you’ve got to have that model effectively set up to go once the referendum result occurs, a bit like we did when MMP came in. If the vote was yes, here’s what happens. If you just left it as an open ended question you’ll see more of what we saw this evening and no progress.

That’s what Green MP Chlöe Swarbrick is proposing. See Q+A: Should NZ legalise recreational cannabis?

Peter Dunne: …that brings you back to how this whole process is structured. I don’t think the Government’s got it’s head properly around this at the moment.

If you’re going to have a referendum which is going to be definitive in some way, then you need to have a proper considered period of education and information dealing with all of these issues beforehand.

Probably the best part of a year actually, which means if you’re going to have the referendum you’d probably want to have it at the latter part of next year clear of local body elections next October, and well before the general election.

I think they’re a way behind the 8 ball on that frankly.

That’s how it appears to me. Last week Minister of Police spoke of treating drugs as a health issue, Jacinda Ardern has said that in the past, but it appears to be all talk and little action apart from Swarbrick doing her best to push things along.

Full panel discussion:

Q+A: Helen Clark on why NZ should give up the war on drugs

On Q+A last night Helen Clark talked about why New Zealand should give up on the war on drugs.

“I support the New Zealand Drug Foundation on this, and their position is that there should be a binding referendum in 2020.”

I’d prefer to see a binding referendum before the 2020 election (and that could be done in early 2020). It is important enough to be dealt with on it’s own, without the distraction of a general election. This means having legislation written and agreed in Parliament to put to the referendum for approval or rejection before that.

The Greens have a confidence and supply agreement with Labour to have a referendum before or alongside the 2020 general election.

This isn’t new from Clark. In March 2018: War on drugs has failed – Helen Clark

Former Prime Minister Helen Clark says a bill that would quadruple the maximum prison sentence for people supplying synthetic cannabis reflects a failed war on drugs mentality.

National MP Simeon Brown’s bill would extend the maximum prison term for supplying synthetic cannabis from two years to eight.

It passed its first reading at Parliament last night – supported by National and New Zealand First MPs.

At a conference on drugs at Parliament today, Ms Clark, who is a member of the Global Commission on Drug Policy, said the global war on drugs had failed, with devastating consequences for individuals.

Ms Clark said the proposed synthetic cannabis law change was more of the same.

“That is heading in the war on drugs direction which isn’t going to work – but going to a select committee to a bill is one thing, what will come out the other end.

“And I think all the people who know about drug policy, who know what’s happening around the world, need to come to the (select) committee and spell it out how it is.”

Ms Clark said it was time for New Zealand to have a fresh look at its drug policy.

“We have to look at the evidence of what works – and if we looked at Portugal or to Switzerland or any number of countries now we see more enlightened drug policies, which are bringing down the rate of death and not driving up prison populations.”

Full Q+A interview:

 

“If we look at penal policy, clearly it’s failed.”

“I’m personally totally opposed to three strikes and you’re out, I think that’s a ridiculous approach.”

On drug reform:

“That would be the gold standard, to go to the Portuguese model, which is decriminalisation surrounded by massive harm reduction measures.

“New Zealand innovated more than thirty years ago with the needle exchange scheme, and we did that because it was absolutely essential to stop the spread of HIV aids.

“But we haven’t really done much in all the years since, and if we look at what Canada is now doing, you have safe consumption spaces where people who inject drugs are able to inject in safety where their drugs are tested, and also in a number of countries much readier access to the anti-overdose drug Naxolone, which WHO says should be in the hands of anyone likely to witness an overdose.

“So I have no doubt that we could do much better, and we need to look at what’s Norway doing, what’s Canada doing, what’s Portugal doing, who’s doing things that are working.”

Corin Dann: “Again though where does leadership come in here, because this current Government has said they would look at a referendum, but then there’s no guarantee they would act on that referendum. It seems to me that once again politicians are very nervous about leading on this issue. What should they do?”

Clark:

“Well I support the New Zealand Drug Foundation on this, and their position is that there should be a binding referendum in 2020. and for it to be binding you need to prepare the legislation beforehand so people know what they are voting on and you can have an informed debate.

“In referendums the question is always the question, and it needs to be simple, but if it’s a simple yes/no around a law that’s been passed and will be activated by a ‘yes’ vote, that becomes clearer to explain.”

I hope she convinces Jacinda Ardern and Labour on this.

Passing legislation next year that is subject to a binding referendum in early 2020, months in advance of the general election is do-able and should be a no-brainer if Parliament is prepared to lead on this and address what is currently a very poor situation on drugs.

“The current policies aren’t working”.

Do you think the public feels that?

“Yes I do, but I also think what has changed is that around the world we’re seeing a lot of movement on these issues. Certainly on cannabis decriminalisation and even legalisation in US states and Canada and European jurisdictions.

And in the area of the other illicit drugs we’re also seeing a lot of innovation around harm reduction measures. So I think follow the evidence, see what’s working.

Portugal in the mid-late nineties, when it went down this road, had the highest rate of drug related deaths in all of Western Europe. Today it has the lowest, so clearly they’ve got something right.

Decriminalisation or legalisation is the approach that Portugal and others take, but they then have regulation.

Now New Zealand did try regulation of some psycho-active drugs back in 2013, then for whatever reason it got dropped like a hot cake the following year, but I think it is worth going back and looking at the principle of that with respect to that particular group of drugs.

That refers to the legislation promoted by Peter Dunne, passed by Parliament but then dumped by National when they panicked after bad media.

The global drug commission that I’m on will be bringing out a new report in September that will be talking about legalisation AND regulation, you have to have regulation, and you have to have major harm reduction measures.

If Ardern really wants to demonstrate that her Government is truly progressive then they will address drug policies that are currently failing badly.

Minister of Health David Cl;ark seems to have been given the responsibility for dealing with this, and he has seemed tol be far from progressive, he is more conservative, and doesn’t seem keen to lead on it.

 

 

Cannabis referendum could be binding

A cannabis referendum (on recreational use) is part of the confidence and supply agreement between the Greens and Labour, and has been promised before or at the 2020 election. The Government is considering making it a binding referendum.

RNZ:  Cannabis referendum may be binding

The Justice Minister Andrew Little says the government is considering what kind of referendum will be held.

“One of the decisions that the Government is going to make is whether it will be a binding referendum, meaning that once the decision is made then the Government will follow through on it. In order for a binding referendum to take place there has to be a reasonable degree of specificity and certainty about what would follow a ‘yes’ vote.”

Winston Peters says he would support the result of a referendum.

“Well look we don’t believe in fake democracy. A referendum is a form of democracy.

“If the question’s going to the people, the people’s answer will be paramount, yes.”

Simon Bridges says that National would follow the wishes of a public referendum: National would legalise cannabis if public voted in favour – Bridges

If the public votes in favour of legalising cannabis in a referendum, a National-led government would change the law accordingly, National Party leader Simon Bridges says.

Mr Bridges said National would enact a law change if that was what New Zealanders wanted.

“Oh I think we’ve got to, I mean we’ve got to go with what the people want and what a referendum tells us.

“We’ve got a bit of water to go under the bridge, we’ve got to see the question, we’re going to have an informed debate I hope on the issues, but absolutely on principle we support referendums and their outcomes.”

Not as much certainty from Labour though.

When asked before she went on maternity leave, Prime Minister Jacinda Ardern would not yet commit to whether Labour would legalise marijuana if a referendum favoured the change.

That’s disappointing from Ardern.

Guarded support but vagueness from the Minister of Health: David Clark in favour of liberalising drug laws

Health Minister David Clark is personally in favour of more liberal drug laws because prohibition has not worked in the past.

But Clark would not commit to abiding by the result of any referendum on loosening laws around cannabis use, saying he preferred to wait for advice from his colleagues.

“I think it’s highly likely that that’s the course we would take … all I’ve said is I want to wait for advice.

“I haven’t had a conversation with colleagues about how that referendum’s going to be framed and what question we’re going to be asking the public.

“Broadly, I favour at a more personal level, more liberal drug laws because I think in the world when prohibition has been tried, it hasn’t worked.”

Clark seems to have been one of the weakest links in the medicinal cannabis bill before Parliament at the moment, so it’s hard to know how he would deal with this.

Hopefully Parliament will make it a ‘conscience vote’ (personal vote) for MPs when it comes to legislation, and hopefully the will of the people weights heavily on the consciences of MPs.

If ever there was an issue that could do with some real leadership in parliament, this is it.

Perhaps Ardern has had a chance to see this while on her break from Parliament, and she picks up and runs with proper drug law reform rather than the weak tinkering and dithering we have seen so far.