By Joseph Boden
On Friday 6th November we learned that the final tally of special votes had left those voting for Yes in the Cannabis Legalisation and Control Bill referendum 2.3% short of a majority of the votes, dooming it to failure. While the No campaign immediately celebrated their victory over sensible cannabis law reform, the Prime Minister and other members of the Cabinet were quick to note that the razor-thin result for No meant that no further efforts at cannabis law reform would be coming from the newly-installed Labour majority.
This set of circumstances highlights the conundrum we now find ourselves in. Approximately half of the population supported what was a proposal for a very significant change in our cannabis laws, from what is effectively a slightly modified prohibition model, to a fully legal model in which cannabis would be sold in retail outlets. This result shows that there is a high level of support across Aotearoa New Zealand in favour of changing our increasingly-antiquated drug laws. The result also shows that the level of support for cannabis law reform is increasing, up from 45% supporting either legalisation or decriminalisation of cannabis in 2014, for example .
Another aspect of the conundrum is that it was not clear what No voters were voting for. It is true that some of them will have voted “against cannabis”, are opposed to its use generally, and would prefer to maintain or even increase criminal penalties for cannabis possession. However, it is also clear that others who advocated for a No vote (such as The Salvation Army ) or who voted No were not opposed to removing criminal penalties for cannabis possession, but could not agree with setting up a legal retail market for cannabis (or even simply not the one specified by the Bill). In 2016 a poll suggested that those opposing legalisation were evenly split, with 31% supporting decriminalisation and 34% opposing any change , suggesting that there was a significant pool of voters who want some kind of change to cannabis laws, if not outright legalisation.
It is possible that the result of this Referendum means that, because of the cyclical nature of changes in government in Aotearoa New Zealand, it will likely be years before we are able to take up the challenge of cannabis law reform again. At the same time, however, the pace of cannabis and other drug law reform overseas is increasing rapidly. A number of countries, including Thailand, Mexico, and Luxembourg are currently preparing to legalise cannabis, and others may soon follow. Indeed, in the elections in the United States last week, the five cannabis and drug law reform referendums on different state ballots all passed, including passage of medicinal cannabis in two extremely conservative states, South Dakota and Mississippi. There is every sign that this trend will continue into the future, leaving Aotearoa New Zealand in the unusual position of being behind, rather than in front of the arc of social change, as we have been so many times in our history.
Despite the failure of the Referendum, the moral argument for cannabis and drug law reform remains the same as it did prior to the Referendum process. This is, it is wrong to criminalise people who use certain kinds of drugs, particularly when such criminalisation does precisely nothing to improve or enhance the health and safety of the individual, or the population of Aotearoa New Zealand. It is also wrong to continue with a law we know to be ineffective, and that has the scope to be enforced in such a racially-biased manner. The truth of the matter is that drugs such as cannabis will never be eradicated, and eventually we will as a nation be forced to grow up and adopt a more sensible policy that does not stigmatise drug users, and does not increase social harms through involvement in the justice system (particularly for Māori), which often has lifelong consequences.
Given this, what should the priorities be for moving forward with cannabis and other drug law reform? One possibility is through exerting political pressure, perhaps through lobbying sympathetic Members of Parliament to submit Private Member’s Bills for drug law reform. While there is a reasonable scope for attempting this, the chances of any such Bill being brought to a vote and passing would seem slim, even with the new, more relaxed rules for introducing Private Member’s Bills. Perhaps more importantly, the failure of the Referendum will be prominent in the minds of many MPs, who will want to avoid any potential electoral cost to supporting drug law reform so soon after the Referendum being rejected by a slim majority of voters.
Another possibility would be to urge the Government to use the tools they already have at their disposal to reduce harms associated with illicit drugs. Specifically, in August 2019 the Government passed an amendment  to the Misuse of Drugs Act (1975) , which provided for the decriminalisation of possession amounts of all drugs (not just cannabis), unless the Police could show that a referral for prosecution was in the “public interest”. While the precise meaning of “public interest” was left unclear, the intention of the change in the law was clear: the Government expected that fewer people would be charged and prosecuted for possession-level drug offences. Recently released data suggests that, in the short term the Police did reduce their arrests and referrals, but this soon drifted back to normal levels, with the strong bias towards criminalising Māori for drug possession offences remaining. These data suggest that the Police are not following the intent of the law, and it is imperative that a solution is found to help the Police enforce the law in the manner it was intended.
Two possible approaches could be used to deal with the issue of the Police’s enforcement of the 2019 amendment. One is through introducing a further amendment to the 2019 amendment, in which the “public interest” clause is removed, and the Police are directed that they must not arrest or charge people with possession-level offences, and changing “soft” decriminalisation to “hard” decriminalisation. The second approach would be to persuade the Ministers of Justice and Police that they must instruct the Police to follow the law, and to provide the Ministers with research suggesting how successful implementation of decriminalisation can be achieved by working together with the Police. This approach would perhaps be more palatable to MPs, as it simply aids in interpretation and implementation of the already-existing law.
It should be acknowledged that while this is would be an improvement on the prohibition model, in that drug users would be less likely to become involved with the justice system, decriminalisation remains a half-measure approach that does nothing to reduce the harm associated with problematic substance use. The supply side of the illicit drug market would remain illegal, requiring the justice sector to continue to spend a great deal of money on interdiction, prosecution and imprisonment, and no additional money would be available to help people who need treatment for substance use disorders. Therefore, it is clear that an improvement on the existing law is really only the first step toward real drug law reform. We will begin to make real progress when we realise that the War on Drugs has been a complete failure and damaging to our society, and that significant changes in our attitudes and laws are needed to begin to deal with drugs as a health issue, and not a justice issue.
 Derek Cheng, “Polls show opinion shift on cannabis”, New Zealand Herald, 28 June 2014.
Joseph Boden is an Associate Professor in Psychological Medicine at the University of Otago. He is an expert in substance abuse.