By Russell Brown*
Analysis: The details for the 2021 referendum on legalising personal cannabis use have been published. What will the question be? Will there be legislation and can the government elected in 2020 change it? And are cannabis cafes on the horizon? Russell Brown makes sense of it all.
Since the 2017 confidence and supply agreement between the Labour and Green parties committed the government to "a referendum on legalising the personal use of cannabis at, or by, the 2020 general election", information about what we will actually be voting on has been scant.
We were told in December, more than a year after the agreement was published, that the referendum would be held in conjunction with the 2020 general election - and that it would be "binding".
That second undertaking is questionable after the widely-predicted confirmation today that while the public will be asked to vote "Yes" or "No" on a detailed proposal - which is constitutionally optimal - that proposal will take the form of a draft bill rather than an enacted law to be automatically affirmed by a "Yes" vote. This is something short of constitutionally optimal.
But it's worth bearing in mind that what was on offer a year ago could have been considerably short of what has been announced today. It was entirely possible that the governing parties would not have agreed to bind themselves to acting on a result, that there would be nothing like a draft bill, or that that the government could have opted for the minimalist course of reform and propose only "legalising the personal use of cannabis" and nothing else. These were all possible outcomes of the C&S commitment.
Instead, what we have is evidence that the Ministry of Justice team appointed by Justice Minister Andrew Little to consider the options has not been sitting on its hands. Little's announcement today, signed off yesterday by Cabinet, contains the bare bones: a minimum age of 20 to use and purchase recreational cannabis; regulated commercial sale; "limited" home-growing options; a public education programme; and "stakeholder engagement" in the development of the draft bill.
But the Cabinet paper delivered by Little offers a far more detailed insight into the government's thinking about the legalisation of cannabis. It dismisses the minimal option of decriminalisation on the basis that "would not address the issue of supply" and would essentially require the law to be ignored in order to work.
Instead, the recommendation is for "full regulation of recreational cannabis". This would include:
- A legal age of use and purchase of 20. Unlike alcohol, cannabis could not be consumed under the legal age, even with parental permission and it would be an offence to provide it to someone under 20
- Regulation of the potency of cannabis products
- A state licensing scheme for all stages of cannabis production and manufacture
- A state licensing scheme for all stages of cannabis production and manufacture
- The restriction of the consumption of cannabis to private homes and specifically licensed premises
- Restriction of sales to licensed physical stores only - so no online sales
- The inclusion of health and harm minimisation messaging in the marketing and retailing of cannabis
- Recognition of and permission for "social sharing" of small quantities of cannabis among people of legal age
- Regulated sale of cannabis plant and seed for home cultivation, "including the requirement to keep children and underage individuals safe"
- Regulated sale of both edibles and cannabis concentrates. This is where we diverge somewhat from Canada, which has been shy of allowing the sale of concentrates. It would be legal to make your own edibles at home - but not your own concentrates, because the process is dangerous
- A complete ban on cannabis advertising and restrictions on marketing. (So Cannabis Company A would be allowed to develop branding but prohibited from advertising cannabis products)
- No importation of cannabis unless by a government-licensed wholesaler for the current market "to minimise the consequence of an illegal trade"
- One thing not included in those headline provisions, but referenced repeatedly in the document: the interests of Māori. It observes that under the current cannabis regime, "Māori still experience more criminalisation and the resulting social harms than other ethnicities. Should cannabis be legalised, the model must promote equity and improve opportunities for Māori"
Exactly how equity and improved opportunities would be promoted is less clear. The paper posits that "a small market with government control over how many businesses can operate" would be biddable as regards government policy on Māori equity and promises consultation but does not, as yet, promise a stake for Māori business in any new industry.
The decision that a past cannabis conviction would not be a barrier to participation in licensed medicinal cannabis businesses could easily be carried over into regulation of recreational producers. But there's no hint in the Cabinet paper of a further step: Expunging past convictions. Given what we know about how the burden of criminalisation has fallen disproportionately on Māori over decades, this may be something iwi and other Māori groups want to discuss.
We do however, know the overarching philosophy of any industry regulation: To limit supply to the current level under illicit production. Market growth is very much not the aim here.
This ought to tally well with lessons from legal states in the US. Jurisdictions that have limited the supply of licences have generally had better results. By contrast, in Oregon, making production licences cheap and easy to obtain has resulted in massive oversupply (and consequently massive diversion to the black market). And in California, the near-absence of controls on business scale combined with punishing compliance costs has prevented smaller producers going legit and pretty much enforced Big Marijuana as the dominant market characteristic.
But the licensing and regulatory regimes are also where much of the detail is yet to be filled in. There are multiple reasons to want to design a scheme that does not facilitate big business. Will we follow Canada and look to create a path for "craft" producers? Will we seek to keep businesses and their revenues local?
The paper does propose licensed premises for consumption, recognising that some people who wish to use cannabis might not wish to do so in their family homes. This seems to lean towards something we already know from overseas experience: It doesn't make sense to confine retail to places that are difficult or even dangerous to get to. It's not hard to see somewhere like nooks and crannies of Auckland's K Road precinct being suitable (and local businesses would certainly welcome hordes with the munchies), but it could be more difficult in other regions.
Justice officials have discussed non-profit options for retail, although these aren't canvassed in the Cabinet paper. While the liquor licensing trust model works well in some parts of the country, it's widely despised in Auckland. And do we really want to make community groups to become as hooked on weed revenue as they are on pokie dollars?
The document repeatedly emphasises that the public health goals embodied in legalising and regulating cannabis will not be reached without investment in health support services, another area where Māori - who are more like to suffer cannabis-related health harms and less likely to get the support they need - have been failed for decades.
That investment will rely on revenue and the paper passively-voicedly expresses "an expectation that there will be an excise tax regime, similar to other harmful product regimes, and that revenue raised should be used for harm minimisation".
But that's complicated. The standard public health response to vices is to curb consumption via punitive taxation. Yet there's a countervailing imperative here: T kill off, or at least considerably reduce, the existing illicit market. Tax licensed producers too hard and you erode their advantage over the criminal market.
At any rate, these things will be discussed via "limited and confidential workshops" with "targeted stakeholders", who might include Māori groups, academics and researchers, those working in related industries such as medicinal cannabis production - and cannabis users.
It's these consultations on a first draft of the bill - which fall somewhat short of a select committee process - which will inform the text of the bill on which we actually vote. The public won't get to see that text until June next year, at which point the public information process kicks in. If any particularly strong ideas emerge from public consultation, they could easily be incorporated into the bill the next government passes - but not, unless the government decides to be more flexible, into the one we actually vote on.
Is it possible that the next government could just walk away from the whole "binding" thing? If it is another Labour-Green-NZ-First government, then no. They've all committed to pass the law in the event of a "Yes" vote. A National government? Possibly - although Simon Bridges indicated on Morning Report this week that he would respect a "Yes" vote.
Could the next government make material changes to what we vote on? Absolutely. Although today's release suggests a level of detail that will have its own momentum. If people vote "Yes" to a detailed bill, making major changes to that bill would be pretty awkward.
What it does all mean is that is that in the event of a "Yes" vote - which is what, to a greater or lesser degree, polls suggest - we'd be waiting until 2021 for actual legalisation. And that's assuming the government doesn't kick regulatory detail to officials after the passage of the bill, as has happened with the medicinal cannabis law. You could expect enforcement of cannabis laws to wither in the interim, but you won't legally be blazing up for a while yet, however the vote goes next year.
But it would be wrong to conclude on process, given what's actually in today's document. We have always struggled to have a sensible discussion about drug policy. The detail outlined in Andrew Little's Cabinet paper is essentially unprecedented. However the vote goes next year, we will no longer be able to say we haven't had the conversation.
*Russell Brown is an Auckland-based journalist for Public Address and drug law reform advocate.
This article originally appeared on The Spinoff.