Non-binding referendum open to many changes

The Government has promised that if the public votes to legalise recreational cannabis, it will support the proposed legislation, including the age limit, despite not being legally bound to do so. 

However there is slight disagreement between the Justice Minister and the Prime Minister over just how explicitly they would rule out substantive changes to the legislation (like changing the legal age for smoking cannabis) after the public had voted in the referendum. 

Justice Minister Andrew Little unveiled the shape of the referendum yesterday, saying it would be based on draft legislation that proposed a legal age of 20, and would be put to the public at the 2020 election.

The Parliament returned in the 2020 election would then be obliged politically - though not legally - to follow the outcome of the referendum.  

The issue immediately ignited debate on the definition of the term “binding”. No Parliament can legally bind a future Parliament, which could simply repeal the legislation. Nevertheless, the commonly held view is that binding referenda tend to be based on legislation passed before the vote, which then “self-triggers” if and when the referendum passes. 

This was the case for National’s flag referendum, and the referendum on MMP in 1993. To unpick those referenda, Parliament would have to repeal the legislation they put in force. In the case of the forthcoming cannabis referendum, Parliament would simply have to decide not to enact it. 

The National Party have so far refused to say whether they would back the vote, saying they would like to see legislation first. 

Constitutional law expert Graeme Edgeler said the referendum was no more binding than an election promise.

“It’s exactly as binding as any other political party promise prior to an election,” he said. 

The Government was also forced to play down concerns that the legislation put to the public at the referendum could change as it passed through the legislative process. 

This was identified as a “risk” in a Cabinet paper released with the referendum. 

“There is also a risk that the legislation, if introduced, could be changed significantly by the next Parliament or Government before it is enacted,” read the paper.

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. 

Both Little and Ardern said any post-referendum changes would be minor.

Little said that all the parties in Government were “bound by the result of the referendum” and that the referendum would be based on “fully completed draft legislation”.

Pressed on whether substantive alterations, like changing the age for smoking cannabis, would be possible after the referendum, Little commented that it would be unlikely, although not impossible.

“For departure from the policy there would have to be a very compelling case to do so,” Little said. 

“I can’t believe there would be any compelling case to reduce that, there would have to be a compelling case to increase it,” he said. 

Ardern, however, ruled out a change on the issue of age, saying that any legislative changes would be to do with drafting.

“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,” Ardern said. 

“We need to give the assurance to the public is that the core principles and substantive policy decisions will remain the same,” she said.

Green Party Drugs Spokesperson Chloe Swarbrick said that her party’s first choice was for the legislation to be passed this term and triggered by a “yes” vote in the 2020 referendum. 

“We were really clear going into the process and we said publicly, that our preference would be for a self-executing referendum that would mean we passed all stages of the bill prior,” Swarbrick said. 

“The reality of the situation is we’ve been working hard with the three parties in Government and also have to take into account the timeframe,” she said.

She said it was unlikely that any party would want to substantially alter legislation put to the public in the 2020 referendum. 

“There would be substantive political cost,” she said. 

National’s drugs spokesperson Paula Bennett raised concern with the fact the legislation put to the public would not benefit from select committee scrutiny.

“[W]hile legislation will be drafted, it won’t go through the House, meaning Parliament won’t have the opportunity to improve the legislation through the Select Committee process, expert advice and public submissions,” she said. 

In the event Ardern’s Government did not win re-election, there is no guarantee that the binding referendum would be enacted in the form put to the public, a substantially altered form — or ignored completely.

Edgeler noted that it was possible a party, likely National, could take interpret a “yes” vote as a vote for change, but enact substantively different legislation.

National could, for example, say it was concerned about the Government’s approach and put forward legislation that decriminalised cannabis, without moving to full legalisation. The party would then make this a campaign promise in the 2020 election which they would enact in the event both a “yes” vote passed, and the party won a majority for their legislation in Parliament.

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