Hard News by Russell Brown


What we learned yesterday about the cannabis referendum

Given the sheer number of issues canvassed in the twin media conferences that accompanied the signing of the new government's coalition and support agreements, it's understandable that the cannabis referendum and drug law reform in general haven't had a lot of air since. But we did learn a couple of things yesterday.

The first is that the referendum will not be binding. The second is that the question or questions put to the public are yet to be determined.

The relevant passage comes here in the Ardern-Shaw press conference in answer to a question about whether Labour will support the decriminlaisation or legalisation of cannabis if that is the result of the referendum. Ardern fairly leaps on it.

What we've said is that we absolutely believe and agree with the Green Party that it's time to take this to the public. They advocated strongly for that in our negotiation. It wasn't something we campaigned on, it is something the Green Party brought to the table. We agreed that what we're doing now simply isn't working. So we've said yes to having that referendum.

We expect that we'll have a process in the lead-up to formulating the question that allows the public to engage in debate. And we expect also to use that public debate to input into the development of the question itself and potentially into any proposals we'll take to the public for them to vote on. That will be a very public-facing process.

Again, we've left ... ah, these issues generally have always been a conscience vote for our members, but I'm sure they'll be heavily guided by what the view of New Zealanders comes back as.

On a question about making medicinal cannabis available to New Zealanders.

Yes, absolutely. We share a commitment on that that issue.

Ironically, the unequivocal second answer tells us less than the mildly hedged first one.

The confirmation that the referendum will not be binding will undoubtedly come as a disappointment to many advocates, but it's not all bad. What it does do is shift a key element of the policy debate.

The actual wording of the support agreement commits both parties to:

Increase funding for alcohol and drug addiction services and ensure drug use is treated as a health issue, and have a referendum on legalising the personal use of cannabis at, or by, the 2020 general election.

The first half of that sentence is very welcome – and the second is a fairly vague proposition. Does "legalising personal use" mean producing and supplying cannabis would remain illegal, but it would not be an offence to possess it? Or does it mean legalising and regulating the production and supply of cannabis?

I think it's safe to say the words in the coalition agreement will not be those on the referendum. It's not unlikely that the public could be presented with more than one option, perhaps in a two-step process.

What that means is that there is everything to argue for before the question or questions are even drawn up.

That argument has already begun. University of Waikato law professor Alexander Gillespie writes in a Dominion Post column that a refendum is the right way to enact change and harks back to a "New Zealand tradition" of direct democracy around the regulation of alcohol.

He argues that there are three options: the status quo, decriminalisation ("by which the user is kept innocent, but the product, illegal") and legalisation and regulation. In truth, there are many options within those options. Home growing, cannabis clubs like those in Europe (which are an idea worth considering), a state monopoly, some facsimile of alcohol regulation, which shifts part of the burden to local authorities, or a regulatory framework that endeavours to avoid the mistakes made with alcohol.

Gillespie argues that "the exemplar of this approach is the United States, where the citizens of 16 individual states have voted to legalise cannabis for medical and/or recreational uses."

The US is not really a useful exemplar. There are 29 states that that, on the face of it, allow for medical marijuana, but some of those allow only CBD products, while at the other end of the scale, California's medpot regime has been so loose as to virtually amount to legalisation for any use.

Even the eight states that have legalised recreational use represent a variety of approaches. Colorado and Oregon have similar systems, allowing for commercial prodction and sale, but leaving it up to individual counties to decide whether or not to allow dispensaries to operate. Washington State's system is more restrictive and makes it an offence to hold more than an ounce of weed at home or grow your own without a medical licence. Washington DC is generous about home-growing but forbids commerce. Alaska allows dispensaries but imposes a $10,000 fine on anyone carrying more than an ounce – and a $50,000 fine (or five years in jail!) on anyone who strays within 150 metres of a school or recreational centre with even a crumb of pot on their person. Maine, Nevada and California are still working out what their rules will be.

Moreover, these are all state initiatives and we're talking about national law reform. As I've noted before, where we could and should look is Canada, a liberal democracy that has embarked on a cautious, informed legalisation process. Even there, regulations will differ from state to state when legalisation happens in July next year. Central government law sets a minimum age limit of 18, but Ontario is going for 19 – and, in an unpopular move, a state government monopoly on sales. All states are still working through impairment testing for drivers.

The key thing is, there's a process. In July, I met Anne McLellan, the former Canadian Deputy Prime Minister who led the task force that began that process. I think it's a very safe bet she'll be invited back her to share what they've learned. Among the US states, the authorities in Colorado seem the most responsive and thoughtful and I expect we'll hear from them too. This week's comments to Canadian media from the state's Chief Medical Officer are useful.

As regards the medical question: Labour's medical cannabis policy isn't as good as the party thinks it is. It requires that doctors and official not deny medical prescription to anyone who needs it, but it doesn't deal with the prohibitive cost of prescribing imported products, have anything to say about domestic production or countenance home growing. It's even conceivable that Labour could tank Julie Anne Genter's private member's bill at select committee. There are plenty of questions there.

One thing the new goverment could usefully do is give some clearer direction to police about "green fairy" prosecutions. Rose Renton was in court last week facing charges over growing and producing high-CBD cannabis products (a balm and brownies) which are only minimally psychoactive and pose little or no risk to health. That's crazy and cruel. And, when it takes away resources from addressing predatory dealing in much more harmful drugs, actually nonsensical.

It's going to be an interesting three years. Norml president Chris Fowlie wrote a good post for the Daily Blog on the road ahead for cannabis reform advocates and how to frame questions and get results. He won't be alone in thinking about this stuff. The New Zealand Drug Foundation is already taking its model drug law on the road to start the conversation.

It's a conversation we've needed to have for a while. The one demanded by statements about drug use being a health not a criminal issue and by the Prime Minister's words yesterday about how "what we're doing now simply isn't working". Let's be having it.

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