Comment

Sophistry and bollocks on the referendum

Next year's referendum on recreational cannabis will be the first Government-initiated referendum not to have an immediate definitive outcome, and voters are being asked to take a great deal on trust, writes Peter Dunne.

Government-initiated referenda are rare in New Zealand. Since 1992, there have been only five - three on the electoral system (1992, 1993 and 2011), one on compulsory superannuation (1992), and one on the flag (2016). In each case, there has been a specific outcome which has been immediately binding on the government of the day.

The two 1992 referenda rejected a compulsory superannuation scheme, and agreed to have a referendum at the following election between the 'first past the post' electoral system and the Mixed Member Proportional system. The 1993 referendum adopted the MMP system set out in legislation passed prior to the referendum; and, the 2011 referendum endorsed the retention of MMP. The 2016 referendum rejected changing the New Zealand flag.

Next year's referendum on recreational cannabis 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 whether or not people wish to change the legal status of cannabis used for recreational purposes along the lines to be set put in a proposed Bill to accompany the referendum.

But this Bill will not even be put before Parliament, let alone passed, until after the referendum has been held, so voters are being asked to take a great deal on trust.

The Justice Minister has given a commitment that the current three Government parties will treat the outcome of the referendum as binding, and that the Bill will come before the next Parliament. But he has given no assurances that the Bill will be the same as that to be released before the referendum, or that it will not be substantially strengthened or weakened by the select committee process to follow, or even when during the term it might be introduced and passed.

Meanwhile, the Leader of the Opposition says he cannot say what his party's position will be until they see the proposed legislation. The Minister tries to justify his position by saying that no Parliament can bind its successor Parliaments.

This is, to put it politely, pure sophistic bollocks.

Every piece of legislation passed and regulation promulgated by every New Zealand Parliament since our first Parliament met in May 1854 has to some extent or another bound successor Parliaments. Indeed, if those successor Parliaments have not liked laws passed by their predecessors, they have either repealed or amended them.

That is the stuff of politics and political discourse is all about, and governments have always reserved the right to upend the legislation of an earlier government if they have not liked it, and to replace it with something more akin to their own way of thinking. The notion that responsible governments have demurred from doing things on the grounds they might bind their successors is as nonsensical as it is fanciful. Indeed, only a few months ago, before it was snookered by New Zealand First, the present Government was proposing to legislate during this Parliament for a capital gains tax, to be implemented in the next Parliament should the Government be re-elected. There were no scruples about binding future Parliaments then!

From the referendum on compulsory peacetime conscription in 1949, through to the 1967 and 1990 referenda on extending the Parliamentary term to four years, and those referred to earlier, governments of the day have used the process judiciously to allow the voters to determine controversial issues that either the politicians cannot decide upon, or, in the case of electoral law changes, should not decide upon.

And the process is not limited to New Zealand - Britain's 2016 Brexit referendum would be the obvious example. Despite the likely disastrous consequences of a vote to leave the European Union, the British Government still felt obliged to honour that outcome, even though it had been made abundantly clear beforehand that the result was not binding. The Government, even in the most unusual of circumstances, still felt that the expressed will of the people, rightly or wrongly, should be honoured.

The notion of a government-initiated referendum that might or might not be binding, or implemented quite as people expect, has been completely foreign to all of those earlier examples. Yet that is precisely what New Zealand now faces with this Government's, all things to all people, recreational cannabis referendum.

But it is actually worse than that, which could produce more uncertainty than it seeks to resolve.

On the assumption the referendum passes, the country faces a period of uncertainty while the legislation is considered and wends its way through the Parliamentary process, over at least most of 2021, and possibly the early part of 2022, assuming the Government decides to proceed with it as a priority, and that is by no means a given.

If it follows the form of the Minister's announcement, it will introduce an age limit for legal cannabis possession and consumption (20 years) and restrictions on where cannabis might be consumed (designated places and private properties) not the open spaces, quiet streets, parks and beaches where cannabis is often consumed at present.

All this uncertainty creates a potentially an 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.

All of these are more specific restrictions than the current de facto blind eye approach of the legal authorities, making smelling cannabis's pungent aroma a common experience in many public places today.

At the same time, should the Misuse of Drugs Amendment Bill currently before Parliament pass in its intended form, police will be required to treat the use of drugs like cannabis from a health perspective, and not as a law enforcement issue. But will this still be the case when the proposed cannabis Bill's age and site restrictions kick in? How will police enforcement duties brought in by the cannabis legislation sit alongside the health approach requirement of the Misuse of Drugs Amendment Bill? And will people feel that the law on cannabis, with its new age and site restrictions has actually become tougher as a result, forcing more to turn to the black market of unregulated psychoactive substances?

And where will be the gangs be in all this? Will the proposed exemption for growing a small amount of cannabis for personal use address how that raw material is to be supplied, or will the silence of the Misuse of Drugs Amendment Bill on supply be maintained, leaving the gangs' position effectively untouched?

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. However, without that, the current disgruntlement about the inconsistent way the current law on cannabis operates, is likely to give way to a new disgruntlement about its replacement.

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?

The way this issue has turned out is another example of how this unwieldly administration seems at sixes and sevens when it comes to major policy development.

Nothing ever seems to be able to be implemented quite the way it was promoted two years ago when the Government took office. The compromises necessary to keep Labour, New Zealand First and the Greens may well be examples of MMP government in practice but they are increasingly looking like weak excuses for missed opportunities.

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?

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