Legal Beagle by Graeme Edgeler

Thanks for this, Graeme.

Will it be legal to sell cannabis, or just to possess and use it? Will people be able to grow their own, or will they have to buy it from specific government licenced dealers? Will you be able to smoke it outside in public places, like tobacco, or will that be prohibited, like the public consumption of alcohol often is? How will it be taxed? Will cannabis advertising and sponsorship be banned? Will councils have a role in regulating where it can be sold, or used? Will they be able to set up enforceable non-cannabis zones (like they can with alcohol), or only unenforced zones (like non-smoking areas)?

Will there be a process for historic cannabis offences be expunged or redefined, as there is is now in California? I think that's worth considering. Related: should past convictions be disqualifying for licensed production or supply?

If home growing is permitted, what should the limit be? And how should any limit be defined – in terms of number of plants or area planted (both have been used in other jurisdictions)?

How concerned are we about runaway commerce? Should cannabis clubs like those in Europe be considered?

And I'd be interested your thoughts about building future room to move into any bill. Colorado authorities have closely monitored their market and made regular tweaks to the law based on what they're seeing. The Canadian government has been frank about its intention to begin with relatively conservative settings, with the potential to loosen them as the nature of the market becomes clearer. (The Canadians also appointed a commission headed by a former deputy Prime Minister to consult nationally before it even drafted its law.)

Excellent article, Graham. While I was working for Gaynz.Com as their political correspondent, the issue of referenda came up a great deal, given the large number of anti-LGBT referenda held against marriage equality at the state level during the Noughties in the United States. Given that I do not believe that human rights and civil liberties should be subjected to populist grandstanding and infringement by tyrannical majoritarianism, I realised that I opposed binding citizens referenda for exactly that reason. And I was fairly consistent about it, much to the displeasure of some on the New Zealand Left who tried to recuperate it for progressive objectives, for which it was not fit for purpose.

I have been pleasantly surprised about the second thoughts from elements of the conservative Christian community in New Zealand over this issue, for that matter. While Family First and the Conservative Party appear addicted to it and ignorant or unaware of critical voices, opponents of euthanasia decriminalisation are quite aware that in a number of cases, binding referenda have been used for that purpose, and I gather antidrug conservatives are similarly anxious about the prospect of recreational cannabis decriminalisation through the same route.

Family First, the Conservative Party and other referenda boosters appear to have nothing more than nihilist contempt for representative, deliberative democratic government. Binding referenda are, as Graeme says, a waste of money and there are other, far graver public policy priorities for urgent expenditure, given the last decade of neoliberal neglect and retrenchment of social spending. They do not address the fine detail of public policy, as Russell states above, and they are prone to exploitation by predatory spinmeister public relations and advertising companies.

I'm surprised at New Zealand First on this issue, too. Surely, given its core elderly constituency, one would have thought one of their policy priorities would be increased health spending for that voter base? I'd rather spend money on that than potty populist plebiscites.

Binding referenda are, as Graeme says, a waste of money and there are other, far graver public policy priorities for urgent expenditure

Please note that I am only saying that *non-binding* referendums are wastes of money.

But nevertheless, the points raised, Graeme, are also salient when it comes to binding referenda- their expense, the possibility of manipulation by predatory corporate elements, and more important priorities for government expenditure when it comes to concrete social spending after a period of relative neglect. I am not opposed to legislative reform in the context of medicinal and recreational cannabis, but I would prefer that it is achieved through the process of parliamentary muster, select committee deliberation and then passage. For that matter, I know many people within the disabled community who view euthanasia and assisted suicide as little more than neoliberal eugenics and oppose such referenda on the basis of libertarian outcomes in Oregon, Washington state, Zurich and Colorado when it comes to that issue. I think binding referenda are appropriate for questions like electoral reform and other constitutional issues (but I prefer a written constitution to referenda precisely because it makes a more nuanced and deliberative contribution to public policy debates possible).

I prefer a written constitution to referenda

If we ever get a written constitution, it will be voted in at a referendum :-)

Unless you have good control of spending in a referendum, it can become an means for the rich to "purchase" legislation, or, an outlet for foreign manipulation. It was obvious that a lot of American fundimentalist megachurch $$$$$ flowed into Australia to support the "No" campaign. Probably not such a problem for us with one on cannabis reform, but anything like marraige equality or euthenasia will attract the attention, and the deep pockets of those who consider that there should not be separation of Church and State.

Any referendum should be held on election day. There are pros and cons (higher turnout versus less media coverage of the subject compared with a stand-alone referendum), but it seems to be politically unacceptable to hold a referendum between general elections in the way grown-up democracies do - by opening polling stations and replicating the election day experience, with people simply getting out to vote. That takes resources, and in NZ, "saving taxpayers' money" trumps all other considerations, alas. Personally I think the collective experience of going to the polling booth is one worth paying for, but the social/national benefits can't be easily measured in bucks, so it gets drowned out by the tedious "what a waste, spend it on nurses, won't somebody think of the children" chorus.

So we have postal ballots instead, with things called envelopes (kids, ask your parents) which more or less guarantee that half the population won't vote. The Australian turnout was very impressive, but I doubt many other issues would get such a response. And the more that referenda are seen as political devices - short-term sops - then the more they get discredited, so when a legit referendum topic comes along (e.g. moving to a republic) then eyes are already rolling.

I'd also add that MPs voting on conscience issues is one of the few times that Parliament gets a positive press. The marriage equality debate showed that MPs can do more than ask patsy questions or shout across the chamber, they can actually sound sincere and thoughtful, and we need more of that, not less. So I don't want them outsourcing their consciences to a referendum.

To me the thing with postal ballots is that there is no real way of knowing that it was returned to the post/ballot box marked by the person to whom it was addressed.

When delivering local community newsletters in Richmond Chchch during the ‘Flag Exercise’ I noticed many stuck in overfull letterboxes of empty houses – this may just have been a post-earthquke Chchch thing.

They could also be just taken filled in and returned, or people who don’t give a toss could pass the form onto someone else to use their vote in aid of a particular outcome.

People will try anything.

I reckon at an election time (either local or national) is best – when people are more ‘civically aware’ and use the time up to that, to educate and engage the public.

just taken filled in and returned, or people who don’t give a toss could pass the form onto someone else

This was a real concern in Australia, as it was difficult to find out whether your form had been posted, and AFAIK impossible to visit an office, get a form, and return it on the spot. For some people who "didn't indicate a preference" (there was no voting) that was because they never saw the survey form. Postal voting is hard to do well, perhaps even harder than online voting.

I quite like politicians declaring that they can't make an important decision and passing it to the voters, but I'm aware that that also magnifies the problems that representative democracy is supposed to ameliorate. I don't want my humanity subject to popular vote (again) or even a major campaign to get politicians to vote on it (again). But... that is often the least worst option, because it tends to only be used when the problem is already severe. Viz, one common reason politicians don't want to take a public stance on an issue is a vehemently held position by some voters. Referendums at least have the advantage of anonymous voting.

Australia also has the useful recent counter-example of the Victorian euthanasia legislation which was both controversial and passed inside parliament without too much public ugliness.

Family First, the Conservative Party and other referenda boosters appear to have nothing more than nihilist contempt for representative, deliberative democratic government.

So they basically want illiberal democracy instead. They'd be right at home with Trump, Putin, Erdogan, Orban, Netanyahu, Duterte, Modi et al...

Even so, overseas referendum results on euthanasia reform don't tend to be one way- as I've noted, there tend to be some pro-reform outcomes- enough for some religious social conservatives to get extremely cold feet when it comes to ones that involve that particular social issue. And row incessantly with those of their ilk who blindly back binding referenda for that reason.

I reckon at an election time (either local or national) is best – when people are more ‘civically aware’ and use the time up to that, to educate and engage the public.

I'm on the opposite side of that. I reckon, if referenda are held as walk-in ballots, they should be held in between election campaign years.

The first reason is the potential for the referendum topic to skew the results of the general election. Some people are saying it would be more advantageous for the Green Party if the cannabis referendum were to be held concurrently with the 2020 election. This is because their supporters are more likely to turn out to a referendum on cannabis and, therefore, are more likely to also vote Green in the general election.

The second reason is the potential for the nuances in the public debate being lost in the noise of the general election. The choices Graeme pointed out in the original post (Will it be legal to sell cannabis, or just to possess and use it? Will people be able to grow their own... et cetera) will be lost in the miasma of fiscal holes, H-fees, and moments of truth. If these debates were to be held in non-election years, we'd have a much more sensible debate.

Also, I like the idea of people being asked more often what they would like. Perhaps it would be better for political engagement if these sorts of debates and decisions were made more regularly throughout the cycles.

Not if it involves the rights of vulnerable minorities, however. No way would I ever support a racist Maori seat erasure referendum akin to the one favoured by Hobsons Pledge. Civil liberties and human rights concerns should never be put to referenda if it involves their abridgement or contraction due to circumstantial anxieties or moral panics. The ordeal faced by LGBT Australians over marriage equality has convinced me of that.

Also, I like the idea of people being asked more often what they would like.

What we need is an experiment in participatory democracy...

:- )

I like the idea of people being asked more often what they would like.

I like citizens juries for that, rather than "based on what you've heard lately, what's your gut reaction to..." which is way too often what is actually done. Deliberative democracy, in other words, of the sort that parliament is supposed to represent but all too often doesn't. Nick Gruen blogs on that subject at ClubTroppo from time to time (example) and I think it's worth trying.

The deliberative approach also has the advantage, per select committees, that there's more space for a variety of opinions to be considered rather than just reacted to, and for work sharing to mean that no one person has to grind through thousands of offensively put submissions (in some ways select committee staff have it worse than facebook moderators because they really do have to look at every submission. I'm told that the standards are generally higher but that's compensated for by the vigor with which the depths are plumbed).

Great article. But I had to stop and think for a moment about anything good about the way the flag referendum was designed.