Andrew Geddis sifts through the constitutional implications of forthcoming vote on legalising cannabis, and offers a warning about the way the campaign is likely to unfold

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 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 bill at the 2020 election, then it automatically would come into force.

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 the fact that the Greens’ Chlöe Swarbrick admits 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. I don’t think we need to speculate too much 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 practice the 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 possibly support 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.