Decriminalisation isn’t the answer: Where to now for cannabis law reform?

The status quo is neither optimal nor desirable, and New Zealand should think long and hard on how it intends to move forward, writes Benedikt Fischer.

As now confirmed by final results, a slim majority (50.7%) of the New Zealand population has voted against the proposal to legalise and regulate non-medical cannabis use and supply in the referendum held on October 17. This means that, for the foreseeable future, cannabis will remain controlled by criminal prohibition; any non-medical use – most of which occurs among adolescents and young adults – will remain illegal and subject to enforcement while supply will come from criminal and unregulated sources.

The referendum’s “no” majority, unfortunately, means that a once-in-a-generation opportunity to fundamentally shift cannabis policy to a public health- and safety-oriented approach has been lost. This outcome, however, should not come as a full surprise. Public opinion on moral issues – like cannabis use – remains persistently divided in liberal welfare-oriented societies. 

Other jurisdictions (including Switzerland, Canada, Uruguay) have not achieved majority support for cannabis legalisation as an abstract idea prior to implementation. Both Canada and Uruguay came to implement legalisation only as a government policy initiative, and public support increased only after implementation. The legalisation proposal in New Zealand also appeared to be promoted mostly by the “ideologically converted”; support from more mainstream public health, justice or policy advocates or entities was largely silent.

Notwithstanding ample, conflicting data, the main discourses and debates regarding cannabis use – cemented over decades – still mainly revolve around risks and harms, primarily for young people, and mental or brain health problems. In these contexts, it is unreasonable to expect that more than half of a population will actively go and say “now I believe that making this drug legal will make this all better, and here’s my explicit support”. 

Rather, if the New Zealand government truly believed that legalisation and regulation was the better policy option for public health and safety-focused cannabis control, it should have implemented such reform as a regular policy initiative, rather than putting it on the referendum side-track. This is, concretely, how the issue of commercial sex work became legalised – even with the slim parliamentary majority of just one vote – in New Zealand in 2003, and how numerous other (controversial) policy matters get decided and implemented in the daily reality of governmental politics. The chance for this is still there. This is true more so now, with Labour’s substantive majority and parliament and a prime minister who – according to her self-disclosed own referendum vote – apparently believes legalisation is the right way to go.

The crucial question at this juncture is: what will happen now in regards to cannabis control in New Zealand? Use rates in New Zealand are comparatively high, with about 20% of people ages 15-25 years as active users. While cannabis use enforcement has decreased in recent years, its disproportionate and arbitrary focus has been on young, Māori men. 2019 amendments enacted to the Misuse of Drugs Act provided police the discretion not to charge for drug possession or use where therapeutic alternatives appeared more beneficial; however, this option appears to be used only selectively, and punitive enforcement responses for cannabis remain common.

Many observers – including government officials and reform advocates alike – have stated that the substantive while insufficient support in favour of the cannabis legalisation proposal provides a mandate for more emphasis on “decriminalisation”. “Decriminalisation” initiatives for drug use or possession control exist in many shapes and forms, and have been implemented in many settings. While most somehow reduce the severity of punishment experienced for drug use or possession (if indeed enforced), they can involve provisions of “civil fines” or “non-criminal ticketing” approaches (e.g., “civil expiation notice” schemes as were implemented in Australia) rather than criminal procedures; informal or other warnings; or diversion schemes to health, treatment or educational interventions – including “drug treatment courts” as a popular version – at different points of the legal process. 

As appealing and sensible as many of these “decriminalisation” options may sound, they generally come with as many limitations, or unintended adverse consequences, as upsides. Most rely and increase “discretionary” powers given to police (or the justice system), which in reality means the common extension of systemic disadvantaging of or discrimination against marginalised groups (e.g. Māori). 

Many of the alternative measures, even if technically focused on health, treatment or education, end up being a form of “punishment in disguise” for those who receive it; for example, they have resulted in excessive but clinically unjustified mandatory treatment admissions. In addition, offenders continue to incur police records. Decriminalisation efforts have also increased in “social net-widening” in multiple settings; that is, they have made more offenders subject to enforcement – in part because of simplified procedures – than had been the case based on conventional enforcement. 

Perhaps most importantly: all forms of “decriminalisation” retain cannabis use and supply formally as “illegal”. This concretely means that any use remains a breach of law; products used remain unregulated and need to be obtained from blackmarket sources; and information or education on “lower-risk” use, or anything not categorically advising against use, lack legitimacy, or can even be misconstrued as the condoning of illegal behaviour. In short, decriminalisation largely means a move “from a rock to a hard place” when it comes to the net benefits of cannabis control.

After the referendum, New Zealand should think long and hard on how it intends to move forward in regard to its cannabis policy for the future. The status quo is neither optimal nor desirable for achieving public health, safety or social justice objectives. Easily feasible “decriminalisation” alternatives are fraught with limitations and unintended adverse consequences. If the re-elected government, with its solid majority, truly believes that cannabis legalisation and regulation is the way to significantly improve public health and safety for New Zealanders, it should put the referendum experience behind it, eat humble pie, and make this a genuine policy reform initiative. A three-year legislative mandate provides more than enough time to successfully do so.

Professor Benedikt Fischer is the Hugh Green Foundation chair in addiction research in the Faculty of Medical and Health Sciences, University of Auckland




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