In New Zealand, the prospects of fundamental liberalising reform to cannabis prohibition are heading into an acute phase. In recent months, the Government has provided incremental clarification that the issues will be decided on through a public referendum to occur on general election day in 2020. Based on recent statements by the Prime Minister, this referendum will be based on a question on possible cannabis control reform to be drafted by Cabinet.

While a referendum is a legitimate means of decision-making on public policy, and has been applied in areas of drug control elsewhere, it is an approach that comes with distinct dynamics in terms of process – regardless of where one sits on the ‘opinion fence’.

Without question, dealing with cannabis control reform through a referendum is an unusual choice in the socio-political context of New Zealand, where few policy issues have been decided by direct democracy. Rather, New Zealand routinely develops or changes law or policy, including on many no-less fundamental or controversial topics, by relying on the standard procedures of its parliamentary democracy.

What makes cannabis control so unique or different that it requires such a special approach?

Yet irrespective of these general queries, and embracing the possible benefits of direct decision-making on cannabis legalisation ‘by the people’, there are various issues or possible pitfalls to consider.

First, in order for a referendum on cannabis reform to work and produce meaningful results, it needs to occur on the basis of a concise and clear question. This question, however, requires comprehensive foundational clarity regarding what overall cannabis reform plan the Government exactly intends to propose and implement. And this involves many devils hidden in many details. For example, a legalisation model in which cannabis use, availability, production and product, advertising, etcetera, are only loosely regulated is very different from one where these essential parameters are tightly controlled and restricted.

Just compare the existent cannabis legalisation models of Uruguay and Colorado: One is governed by extensive public health restrictions, the other is a loosely liberal and mainly commercialised system – which are about as much the same as a pineapple and a blueberry are both a fruit. Yet even if the Government pre-defined key details of its cannabis reform plan, it would require substantial time and effort to adequately communicate and explain these to New Zealanders in preparation for well-informed referendum voting.

One of several key challenges here will be to clearly convey the difference between ‘decriminalisation’ and ‘legalisation’ reforms for cannabis. Notwithstanding many – including leading politicians – viewing and using these concepts as if interchangeable, they are fundamentally different: While the former typically softens the punitive consequences for illegal drug use or sales, and commonly relies on ‘diversion’ measures like education or treatment programs, it retains their formal illegality. In contrast, ‘legalisation’ renders use and availability truly legal in principle, and relies mainly on regulatory measures for control and restrictions.

Public referenda, especially on controversial value issues with implications for society at large, like drug control, can be tricky undertakings. Their unpredictable dynamics are further amplified by the fact that voters are asked to decide on a reform proposal before they have tangibly seen or experienced the effects (whether good or bad) of their decision options in reality. This, commonly, leaves those generally open to change yet sitting ‘on the fence’ opinion-wise due to lingering concerns to lean and vote conservatively, in support of maintaining the status quo. To concretely illustrate: Undoubtedly many middle- or older-aged New Zealanders are generally supportive of options for liberalising cannabis control, yet are hesitant to ‘sign a blank cheque’ for legalisation without first-hand evidence that this will not mean increased risk or harm from cannabis for the children in their lives.

Notably, despite the popular examples of numerous cannabis legalisation votes successful at the ballot box in US states in recent years, there are seminal examples where this did not work. For example, California’s Proposition 19 that sought to legalise non-medical cannabis use per referendum in 2010 did not succeed. In 2008, the people of Switzerland – a country with a strong tradition of direct democracy which has produced numerous landmark decisions for progressive drug policy changes – decisively voted against cannabis legalisation. In both jurisdictions, pre-referendum data had suggested substantial popular support in favour of the proposed reforms.

Legalisation of non-medical cannabis use and supply has been implemented as major government-initiated policy reform projects in both Uruguay and Canada just recently. Most likely, related to several of the factors illustrated above, this would not have occurred in either of the two countries had the legalisation issue been put to a decision by way of a public referendum. All considered, the future prospects of cannabis control will undoubtedly remain both interesting and uncertain in New Zealand – at least until late in 2020.

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