Explainer: The cannabis referendum and why it isn't binding

EXPLAINER: The Government has finally announced the details of the 2020 cannabis referendum.

And politicians immediately got het up discussing whether the referendum would be "binding" or not. National MPs repeatedly asked whether gummy bears would be allowed. The words "legalisation" and "decriminalisation" have been thrown around with little explanation.

You'd be forgiven for being a bit confused.

Here's a brief rundown of what exactly is proposed in the referendum and the myriad political battles surrounding it.

WHAT WILL THE REFERENDUM ASK?

The referendum will be a simple "yes or no" question, not a multi-choice pick.

The exact wording will be decided by the Electoral Commission, but the Cabinet paper suggested it would look a lot like: "Do you support legalising the personal use of recreational cannabis in accordance to [published draft legislation?]"

That draft legislation will set out the exact proposal the Government is offering. It has not been released yet but Justice Minister Andrew Little has promised to deliver it either by the end of 2019 or in early 2020.

WHAT WILL IT CHANGE?

While we don't have the exact draft legislation yet, the Cabinet paper released on Tuesday sets out the broad parameters of what a "yes" vote could change.

Cannabis consumption, sale, and purchase for recreational use would be made legal for 20-year-olds and over, but would be kept tightly regulated by the Government.

Only licensed premises would be allowed to sell it and it could only be consumed either on licensed premises or in private homes - so smoking a joint on the beach would still be against the law.

All advertising of cannabis products would be banned.

A small amount of home cultivation would be allowed - but only for use, not for sale, kind of like home brewed beer. The licensed premises would be supplied by commercial growers. Only seeds could be legally imported and only with good reason by licensed entities.

Online sales would be prohibited.

WHY 20?

The Cabinet paper explains the reasoning behind this decision by Little.

He notes the large amount of evidence that points to the harm that cannabis consumption can have on brain development for those aged under 25.

But he also notes that given a 2011 report found that 80 per cent of Kiwis had tried cannabis before turning 21 keeping it illegal until age 25 would probably just keep people smoking illicit cannabis and accessing the black market to get it.

That said, he believed that setting the age at 18 - the age Kiwis can vote and drink - would "provide an opportunity for 18-year-olds to supply cannabis to younger school-aged peers."

COULD YOU REALLY SMOKE IT AT A LICENSED PREMISES? YOU CAN BARELY SMOKE IN BARS THESE DAYS!

The Cabinet paper sets out a plan to allow consumption of cannabis at licenses premises, as well at in private properties.

Little says in the paper that this is necessary as many people will not want to consume cannabis at home - where children may be present.

Obviously if that consumption took the form of smoking health and safety law is unlikely to allow it to occur indoors. But well-ventilated outdoor areas could allow it, and other forms of consumption are possible under the proposed changes.

WHAT OTHER FORMS OF CONSUMPTION?

The Cabinet paper does not stop at raw cannabis.

It notes that through both the black market and the pharmaceutical industry other cannabis products are already consumed in New Zealand, including edibles, lotions, and cannabis resin.

Little sets out a plan in the Cabinet paper to allow these products but control them more firmly than raw cannabis. Only commercial sale would be allowed of resin - no home production - and edibles would need detailed labelling.

COULD YOU SHARE YOUR WEED?

Yes. Much like with alcohol sharing a small amount of cannabis - including cannabis that you grew yourself - with friends who meet the age-barrier would be allowed.

This would be limited to a small quantity of marijuana and only in a social context - you could not pay your handyman with a bag of weed, for example. It would also be a crime to share it with someone below the age-barrier.

IS THIS DECRIMINALISATION OR LEGALISATION?

This is legalisation. It sets up a full legal process for the production, sale, and consumption of cannabis. Decriminalisation does none of this - instead just removing the penalty for consumption and possession, rather than actively setting up a regulated market.

IS THE REFERENDUM BINDING? WHAT DOES THAT MEAN?

There are two different types of referendums. "Indicative" referendums give the Government a steer on what the public think of an issue, while allowing them to completely ignore the steer if they see fit. This often happens with "citizen-initated" referendums in New Zealand, such as the asset sales referendum. The other type of referendums are "binding" ones, where the Government of the day are compelled to enact the result of the referendum. 

Little and the Government have argued that this referendum is "binding" because every party in the Government has committed to honouring the result by passing the draft legislation.

This does not conform with what basically anyone else describes as "binding" - including his own justice ministry.

Here's the problem. The referendum is being held at the 2020 election, which means the new Parliament elected at that election will be the ones considering whether or not to pass the draft legislation.

That Government could well be made up of the same parties as it is now. But it could well not be. Even if it is made up of the exact same parties, Little himself has not ruled out making minor changes to the law as it goes through Select Committee. And the National Party has not ruled out just ignoring the referendum result altogether if it comes to Government.

The way to avoid this situation would have been to pass a bill enacting the law changes now, but include a clause that means it only has power if the referendum returns a "yes" vote. This is called a "self-executing referendum" and is how the referendums on MMP and the flag were designed. 

A "self-executing" referendum was the preference of the Green Party during negotiations. It is also the only type of referendum the Justice Ministry itself describes as "binding" - as noted in a briefing handed to the justice minister in May of 2018.

Little makes the argument that because no current Parliament can bind a future Parliament the difference isn't really material - a new Government would always have the opportunity to ignore the referendum result if keen.

But this ignores the reality of Parliamentary politics. It is very easy to not do something - to not go through the months-long process of passing a law on the recommendation of a referendum. It is much more work to actively repeal a bill already activated by a law change.

This whole mess gives National ample space to ignore a "yes" voteif it is elected, although this could be politically difficult if the margin is large. The party could also decide to follow through with something smaller - say decriminalisation, or legal cannabis without home production.

HOW DID WE GET HERE? HOW LONG WILL IT BE BEFORE WEED IS LEGAL?

The Green Party won a referendum on cannabis legalisation in the Confidence and Supply Agreement. It was not guaranteed that it would be binding.

Ever since then there has been a lot of struggling behind the scenes about what exactly this would look like. NZ First are big fans of referendums but aren't known to be particularly fond of loosening drug laws.

At this point, actually passing a self-executing law would be quite a feat before the 2020 election, especially if the Government has a lot else it wants to pass.

Even if a "yes" vote wins - different polls produce very different results - we will be talking about cannabis legalisation for years to come.

The earliest the bill could conceivably pass would be very late 2020 after the election. But Little has indicated he wants it to go through the full legislative process - which means mid-2021 would be more likely.