The government wants to call the vote on legalising marijuana a binding referendum but it isn’t a binding referendum, explains Graeme Edgeler. 

 

So, the government has announced a binding referendum will be held on the legalisation of cannabis?

No. The government has announced a non-binding referendum on the legalisation of cannabis. They want to call it a binding referendum, but it isn’t a binding referendum.

Didn’t Andrew Little and Jacinda Ardern say yesterday that it would be a binding referendum, but that you couldn’t bind a future parliament?

Yes, they both said that. Ardern also said the referendum would be a binding referendum in parliament on 19 February. What they have said previously is at odds with what was announced yesterday.

They’re right that a referendum cannot usually bind parliament, but that’s not what makes a referendum a binding referendum.

Well, what is a binding referendum?

A binding referendum is a referendum that binds the government, not one that binds parliament. Political scientists sometimes call binding referendums “self-executing” because the formal declaration of the result of the referendum itself causes something to happen, without anything else needing to occur.

If parliament passed a law before the election, which I’ll call the Sale and Supply of Cannabis Act, that law could have a “contingent commencement”. Parts of the law setting up the referendum could come into force, requiring the Electoral Commission to hold a referendum, but other parts of the law, the sections creating the new regulatory regime around the sale and supply of cannabis, and removing cannabis from the Misuse of Drugs Act would sit there, waiting on the result.

Then, if the referendum resulted in a vote to change the law, the Electoral Commission would declare that change had won, and the other parts of the Sale and Supply of Cannabis would automatically come into force on a specified day. Courts would start enforcing it, and stop enforcing the old repealed sections in the Misuse of Drugs Act, Police would be bound not to arrest people for smoking cannabis in their own homes, etc. And if the referendum resulted in a “no” vote, then the law would be automatically repealed sometime later, most of it having never come into force.

That is what happened at the 1993 MMP referendum, But that is not the process the government has announced yesterday. The process announced yesterday is a non-binding referendum.

But didn’t the minister making the announcement say that the result will bind the parties in the government?

He said that, but it won’t. New Zealand has never had a law that makes political campaign promises enforceable.

And there’s also the possibility that the next government will be a different to the one we have now.

But even if it’s not formally binding, governments usually follow decisions of non-binding referendums, don’t they?

No.

Sometimes, non-binding referendums are seen as having such moral force that the government and parliament are compelled to act. The so-called Brexit referendum appears to have had this effect in the United Kingdom, although even then, a number of parliamentary parties do not consider themselves bound by the public vote.

In New Zealand, the experience is more mixed. There have been seven non-binding referendums in New Zealand’s recent political history. In only one did the government and parliament clearly act on a positive vote: the 1992 indicative referendum on MMP. At that vote, voters asked for there to be a second referendum between the then first past-the-post electoral system and the MMP system New Zealand now uses. The government and parliament then passed legislation to hold that second referendum.

In one non-binding referendum, the 2011 voting system referendum, the government didn’t get a chance to act on a positive result, because voters voted against a change, meaning nothing needed to happen. In the other five non-binding referendums, all citizens initiated referendums, the government and parliament acted consistently with only part of one of them, providing greater rights for victims in the criminal justice system, and increasing penalties for murder, after the 1999 law and order referendum, but did not introduce hard labour or mandatory minimum sentences for all violent crimes. The others, it largely ignored.

Non-binding government referendums may differ from non-binding citizens-initiated referendums, but our only previous experience of a non-binding government referendum that resulted in a call for change was that 1992 referendum, which wasn’t held at an election, which meant the government that set it up was also the government that had to respond to the result.

Of course, even if the referendum was a binding referendum that automatically brought the law into force, that wouldn’t stop a new parliament from repealing or amending the law. The 1993 MMP referendum is a good example of this. That referendum was a binding referendum (the referendum vote itself was enough to cause the Electoral Act 1956 to be repealed and the new Electoral Act 1993, with its MMP voting system to become law), but binding the parliamentary Counsel Office to update the statute book doesn’t mean the new parliament was prohibited from making changes, and there were six laws amending the Act before the first MMP election was held in 1996 (most around the new party disclosure rules), and there have many others since. “Binding” is not “irrevocable”.

So what will New Zealanders actually get to vote on?

The government has announced that the referendum will be a question about a piece of draft legislation it has not yet released. They have given an indication on what will likely be included in it, which Russell Brown considers here.

The drafting process will involve an “exposure draft” which will be released in confidence to a limited number of stakeholder to provide feedback on. After their feedback, a second exposure draft will be prepared. New Zealanders will see and vote on the second draft of the bill.

Depending on the outcome of the election, that second draft may be introduced in the next parliament.

When will the public get a say?

The first time the public at large will get a say is the referendum, which will be held at the same time as the 2020 general election.

What about having a say on the content of the bill itself?

Direct public input on the content of the new law will occur after the referendum, if the referendum passes and if whoever is in government decides to introduce the bill.

It is assumed that any bill that followed the election would be subject to an ordinary parliamentary procedure with select committee consideration. There would be no restrictions, other than the ordinary political restrictions imposed by campaign promises, on what form of legislation would come out of that process

It is possible that informal public feedback received after the second draft is publicly released, but before the election and referendum are held, may lead to one or more parties to campaign at the election on passing the law with specified changes if they get elected to government, and the vote passes.

It is probably likely that if the same parties form the government after the next election as form it now, that some version of it will pass, but this is not guaranteed, which is a pretty good indication that the word to use to describe this referendum is “non-binding”.

Do we know what the actual question will be?

No. This will be determined by parliament when it passes law setting up the non-binding referendum the government has just announced.

The government has indicated that the question will be something along the lines of:

“Do you support legalising the personal use of recreational cannabis in accordance with [the Sale and Supply of Cannabis Bill]?”

With options for yes and no.

As a general rule, I consider you should avoid yes/no questions in referendums, because they can be harder to understand than giving voters the choice between two clearer options. Adopting as much of the government’s language as I can, I would favour:

“Choose one option:

I vote to CHANGE the law to allow the personal use of recreational cannabis in accordance with [the Sale and Supply of Cannabis Bill]

I vote to KEEP the ban on personal use of recreational cannabis in accordance with the Misuse of Drugs Act 1975”

Under this approach, voters don’t need to understand the question, and determine whether a “yes” means “yes, it should become legal”, or whether they’re saying “yes, it should stay illegal”.

Would there have been enough time to have a full parliamentary process on the bill before the next election?

It may have been tighter than some would have liked, but yes.

The Electoral Reform Bill 1992, which became the Electoral Act 1993, was reported by the select committee on 22 July 1993. The Electoral Act 1993, which the public voted on at the 1993 general election, received the royal assent on 17 August 1993. The referendum and election were held on 6 November that year.

If the government wanted to, it could pass a law in time to have it voted on in a binding referendum at the 2020 general election. It just didn’t want to.