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John Armstrong's opinion: There's got to be a better way of revamping archaic drug laws than a cannabis referendum

For heaven's sake, there has got to be a better way of revamping New Zealand's archaic drug laws.

Surely there has got to be a better way of determining whether or not to legalise the personal use of cannabis than indulging in a referendum which risks the spawning of a half-baked experiment in social engineering.

There is no argument that reform is necessary. The stiff penalties long inscribed in the statute books for those caught cultivating, selling or possessing the evil weed now jar heavily and horribly with the police being granted discretion as to whether or not to prosecute those in breach of the current law.

That recipe for inconsistent application of the law is reason alone to justify a much-needed rethink.

The constabulary has long lost the half-century long war against marijuana. However, oodles of dollars in police-time and resources has continued to be poured into searching for back country cannabis plots and those who tend them.

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Ben Cort joined Breakfast to discuss the effect legalising cannabis had on his home state of Colorado. Source: Breakfast

The politicians who find home in the centre or right of centre of the political spectrum have been too chicken to cry "enough".
Not so the Greens. Law and order policy is something for other parties to get bothered about.

Their securing of a provision in their confidence and supply agreement with Labour for the holding of a referendum before or at the next election was at the time regarded as something incidental. It now looks anything but.

It has certainly snookered Winston Peters. Opinion polls show backing for a relaxing of the law to permit recreational use of cannabis is low among the New Zealand First’s dwindling band of supporters.

The last thing Peters wants is to be associated with something which makes him look like he is soft on crime.

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If legalisation is passed, only those who are 20 years or older can legally use cannabis products. Source: 1 NEWS

He has little choice in the matter, however. The holding of referendums remains one of his party's "Fifteen Fundamental Principles".
He can thus hardly block the Greens' use of such a plebiscite to provide a mandate for change.

His current tactic is to put as much distance as possible between New Zealand First and the subject matter of the referendum while simultaneously stressing his adherence to such exercises of the democratic will of the people.

Thus he has declared that whether New Zealanders "can smoke pot or not" simply isn't his party's priority.

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The National Party leader talked through the leaked Cabinet paper on TVNZ1’s Breakfast today. Source: Breakfast

Even so, that has not stopped him chucking a rather large spanner into the mechanics of next year's referendum.

He refused to agree to the Greens' request for special legislation which would have seen all the aspects and implications of legalisation covered off by that legislation and which would have been triggered by a majority "yes" vote in the nationwide ballot.

That legislation would have been passed by Parliament ahead of the holding of the referendum on Election Day.

That way voters would have known precisely what they would be getting from casting a "yes" vote.

Instead, the elements which were to be included in the special legislation will now be incorporated in draft legislation which will not be passed until after the referendum has taken place.

At first glance, that alteration in procedure might seem to be of trifling significance. In fact, it is of huge importance.

When he confirmed the timing of the referendum back in December last year Andrew Little, the Cabinet minister responsible for the running of the referendum, assured everyone that the result would be binding.

The advice from Parliament’s Clerk of the House and Little’s officials in the Ministry of Justice, has been that a binding referendum requires the prior passage into law of the "triggering" measure. That was how the referendum back in 1993 which saw the introduction of the MMP was conducted. Likewise the referendums on changing the flag.

It is how this referendum should have been conducted. What we got instead was an outrageous attempted sleight of hand from the Prime Minister. She slapped down the official advice. She instead argued that the promise to make the referendum binding was a promise that could not be guaranteed. That was because it is not possible for any Parliament to bind a future Parliament.

That is technically correct. But she deliberately ignored the fact that following the official advice and passing the legislation in advance would make it more incumbent on MPs not to tamper with the law subsequent to the referendum. In contrast, keeping that legislation in draft form would be an open invitation to politicians to alter it post-referendum.

However, she noted it was possible for political parties to give a commitment to abide by the decision of the public. The Greens, NZ First and Labour were giving that commitment. Would the National Party follow suit?

Jacinda Ardern’s intervention was motivated by two things: first, helping Peters out by obscuring his refusal to follow long-established precedent for his own selfish reasons; and second, dragging National into the conduct of the referendum process to insure Simon Bridges and company cop some of any public backlash flowing from the outcome of the nationwide ballot.

What this all shows is that Ardern and Peters are worried that there is a shift in the public's attitude away from legalisation. Their concern is that the referendum could infect the general election.

The danger for Ardern that legalisation could become a lightning rod for the grievances of Labour’s more conservative-minded supporters. Little has given sufficient indication that he will endeavour to neutralise that threat by ensuring the model for legalisation to be put in front of voters is a highly-regulated one.

There will be a strictly-enforced licensing regime which will control all stages of the supply chain. Such a regime hardly squares with what most people would define as being a "market".

And that is where the problems begin. With the pro and anti-legalisation lobbies warming up to do battle and a never-ending stream of self-appointed "experts" on hand to offer their tuppence-worth, the voting public is set to be deluged with claim and counter-claim.

The best advice — in fact the only advice — is not to believe a single word of it.

A majority "yes" vote will be an admission ticket to the land of unintended consequences.

By example, take the assertion that legalisation will be the death knell for the illicit market in cannabis. That may turn out to be the case. Just as likely it may not. Even if it does happen, it won’t happen in a hurry.

It will hinge on price. It will hinge on the amount of tax revenue that finance ministers think they can gorge from cannabis users.
The survival of the black market is also contingent on the willingness of authorities to grant licences to those who have been illicit growers up till now.

It depends on the willingness of those growers to seek licences which will require them to satisfy a whole gamut of regulations and practices which are the norm in conducting business, be that meeting specified levels of quality and potency, along with complying with employment law and health and safety requirements should they hire staff.

If would-be growers manage to fight their way through the bureaucratic red tape and manage to make a profit, they will face doing something they have never done before — paying tax.

Amidst this guessing game, there is one prediction which is almost guaranteed to come to pass.

Just as it has been the fate of New Zealand’s bottled-water industry, there will be no shortage of foreign-owned entities with fat wallets ready to provide capital funding to cash-strapped cannabis-growing concerns in return for a financial stake in those enterprises.

The thought that a referendum they initiated might produce such an outcome down the track fills the Greens with horror.

They are determined for that not to happen. Whatever rules the Greens might come up with to block that from happening, cannabis is not exempt from the laws of capitalism.

Sourcing the supply of cannabis is only one of a host of policy matters that will be confronting government officials as they try to compose workable draft legislation.

In hindsight, it might well have been better to have searched out the sharp minds at the Law Commission — at least as a starting point for reform of the drug laws.

Alternatively, it might have been even better to have established a Royal Commission of inquiry to determine the merits or otherwise of the legalisation and — while such an independent body was on the job — request that it do likewise with the fall back option of decriminalisation.

It hardly needs saying that it is now way way too late for that to happen.

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Kiwis may soon be able to grow the plant legally in their own backyards. Source: 1 NEWS