Legal cannabis referendum: How should the question be asked?

29/10/2018

Some time in the next two years the public will be asked to vote on whether or not New Zealand should legalise the personal use of cannabis.

But how exactly should that question be phrased? We went to the experts to find out.

Manu Caddie, Hikurangi Cannabis

My suggested referendum questions are:

Should adults be allowed to use cannabis? Yes / No
Should adults be able to buy cannabis from licensed premises? Yes / No
Should adults be allowed to grow their own cannabis? Yes / No

A good proportion of voters are worried about too many people accessing too many psychoactive substances too often – more detail like the number of plants or who can get a license helps allay some of those concerns and I like specificity to allay fear of the unknown (as is happening with the medical cannabis bill). But to avoid getting hung up on particular details I believe general principles are better to ask voters about at this stage and the details can come through the normal law-making process with the opportunity for public submissions on those details.

Peter Dunne, former Cabinet Minister

If the government is not really serious about reform and simply wants an indicative referendum, then the wording could be very general – for example – "Should the use of cannabis for recreational purposes by persons over the age of 18 years be permitted? Yes/No".

In the event that passed the government would then need to address how to achieve that, making the prospect of any real change unlikely before 2022-23 (allowing time for policy decisions, the drafting and passage of legislation etc), which I think would be quite cynical and unsatisfactory.

If, on the other hand, the government is serious about reform, it could adopt the model of the MMP referendum legislation in 1993.

In that case, parliament passed a bill beforehand setting out all the details of the MMP system and how it would work (the Electoral Reform Act 1993), with its implementation contingent on and triggered by a positive vote for MMP in the referendum.

The question in that referendum was a choice between FPP and MMP as set out in the Electoral Reform Act, and the rest, as they say, is history.

So, using that as a model, the government could pass a bill setting up the conditions under cannabis could be used legally for recreational purposes (under age 18; sale of recognised products though designated stores; limited allowance for personal cultivation etc; penalties for misuse etc?) prior to the referendum, to come into effect only if a majority of those voting voted yes.

In that case, the question could be "Do you support allowing the use of cannabis for recreational purposes by persons over the age of 18 years as set out in the Cannabis Reform Act 2020? Yes/No." If the result was "Yes", the new law could take effect virtually immediately.

That would be much simpler and tidier, but would require a lot of work being done now to get to that point, and there is no evidence that government is doing that, or is willing to do so, which brings me back to fearing my first question above above or a variant thereof as the likely wording.

Chloe Swarbrick. Photo credit: The AM Show

Chlöe Swarbrick, Green Party spokesperson for drug reform

My suggestion would be "Do you support the [proposed law] that legalises, taxes, and regulates cannabis?"

The question has two key parts. The Greens are pushing for a 'proposed law' to pass through the House, which would come into force by hitting a vote threshold at public referendum.

This will give voters clarity on what they are voting on and avoids politicians later arguing over what a referendum result means (see: situations we want to avoid, a la Brexit).

The second part relates to our vision for cannabis regulation that makes sense in Aotearoa New Zealand. We are pushing for a Canadian-style regime over one that benefits big pharma and corporates.

We want a common sense, comprehensive law that recognises private users of cannabis will always be able to grow their own (and presently do, regardless of illegality) and that this needs regulation. Fundamentally, it's in line with our call for a health-based approach to all drug issues.

That said, I would love to see New Zealanders involved in developing the referendum question. I'm advocating for a Citizens' Jury on the referendum question, a tool used recently in the run-up to the Irish referendum on abortion and also recommended in the UK by the Independent Commission on Referendums.

Ross Bell, NZ Drug Foundation

It's not a simple question, it might only be one sentence, but it's a complicated and a really big deal, so we are not ready to commit to a specific question yet.

But, we think the ideal situation would be for a binding referendum, where voters are asked to endorse (or not) a bill the establishes a clear public health regulatory model for cannabis, which has gone through Parliament with public submissions to a select committee, all first informed by an awesome deliberative democracy process such as a citizen jury.

This would be a bloody good fit to shift thinking on New Zealand's fatal attraction to prohibition.

Eric Crampton, The New Zealand Initiative

Canada's approach to legalisation has mirrored its approach to the sale and supply of alcohol. Excise applies. Retail distribution varies province-by-province, and follows each province's approach to sale and supply of alcohol, including provincial variation in minimum purchase ages. I do not normally like following what Canada has done.

I more usually provide it as an example of what-not-to-do. But Canada has beaten us on this one, and the best we can do is play catch-up.

So here's my preferred question. There are surely many like it, but this one is mine.

"Should parliament draft and pass legislation to allow the sale and supply of cannabis in taxed and regulated markets similar to existing regulated markets for alcohol?"

I note that mirroring alcohol would allow home cultivation for personal use and small-scale informal supply in the same way that people can brew their own beer or distill their own vodka at home for social use.

Commercial sale and supply would come with excise, restrictions on advertising, and restrictions on purchase by minors similar to restrictions in place around alcohol. Vendors breaching those rules would face penalties similar to alcohol retailers caught selling to minors.

Councils that insist on using licensing trusts for alcohol could use them as well for cannabis. And Councils could feel free to put in place smoking-ban areas in the same way that they put in place liquor bans.

Marijuana is no more harmful than alcohol; there is no reason that regulation of it should be more severe than regulation of alcohol.

Don Rowe, Spinoff weed correspondent

As Eric Crampton notes above, Canada has already beaten us to the punch on this issue. Fortunately instead of a black eye we've instead got a fantastic model for how cannabis reform might work in this country.

Treating cannabis like alcohol also allows us to copy proven harm reduction strategies whilst acknowledging where there is room for a bit of personal freedom – nobody is going to outgrow facilities like Hikurangi in their back garden, just like very few home brewers pose a threat to Lion Breweries.

Allowing personal cultivation further seems appropriate given the *adjusts sunglasses* grass roots efforts that have brought this issue into discussion at all.

My question: should adults be allowed to possess and use cannabis under a legal framework similar to that of alcohol?

Nándor Tánczos, Whakatane Councillor and former Green MP

I strongly believe that it needs to be a two-part question.

We need to test support for what I would call 'decriminalisation' – the right for adults to use cannabis and possess it for personal use.

Opinion polls suggest there is a clear majority for this. I think this also implies that people would be able to grow it for their own use, because if people can use it they must also be able to legally get hold of it in some way.

We also know that even if they are allowed to, most people won't grow it for themselves. How many people brew their own beer or grow their own carrots?

So there will still be an illegal market for cannabis if we don't regulate its sale. I think we need a second question around being able to buy cannabis from licensed premises.

All the evidence from overseas says that a properly regulated market is the best approach.

If we restrict it to one question we either go half way and only ask about decriminalisation, or do what we know is best and ask about a regulated market, but run the risk of not getting a majority in favour.

Having two questions is the only way to properly test what New Zealanders want. Those questions need to be at a high level so we can see what people want in principle. We can argue about the details in the select committee.

So my questions would be:

Part 1: Should adults be allowed to possess and use cannabis?

Part 2: Should adults be able to buy cannabis from licensed premises?

Ginny Andersen, Labour Party MP

I recommend a binding question, with a citizens jury process used to develop legislation/ a position by 2019/20 – but that will depend on the consultation process.

Mark Dye, former talkback host

Should the recreational use of cannabis be legalised in New Zealand?

It's a pretty simple 'yes' or 'no' question is it not? Why over complicate it?

I don't feel like there is a lot of grey area in this debate, people seem to be either strongly for or strongly against, and so the question should probably reflect that.

The Spinoff.