Pardon them!

Today, US President Joe Biden issued a presidential pardon to everyone convicted of the federal offence of possession of marijuana. Its a good move, an attempt to undo the immense (and racilised) harm the "war on drugs" has caused. And it led to immediate calls to do the same here in Aotearoa.

Naturally, Labour pretended helplessness, with Andrew Little claiming that "We don't have the sort of executive powers that POTUS has. Under our system of government ministers do not interfere in judicial decision-making." Of course, he's lying - section 11 of the Letters Patent Constituting the Office of Governor-General of New Zealand gives the Governor-General (which means Ministers, since the Governor-General acts only on advice) full power to exercise the prerogative of mercy, including the power to "grant, to any person concerned in the commission of any offence for which he may be tried in any court in New Zealand... a pardon, either free or subject to lawful conditions". And that's an executive decision, not a judicial one. Labour could pardon minor drug offenders tomorrow if they wanted to. The fact that they do not tells us clearly that they do not want to; that they support the racialised harm of the war on drugs. That its their war (as well as National's).

But if Labour won't do it the easy way, then there are other ways. In 2000, Parliament issued a statutory pardon to five New Zealand soldiers executed for desertion and mutiny during the First World War. Someone - Chlöe Swarbrick? - could bring a member's bill to do the same for those convicted of bullshit cannabis offences. I've taken a quick stab at what such a bill could look like here.

33,676 people were convicted of possession or use of cannabis between 2010 and 2020. More will have been convicted earlier. They all deserve a pardon. And while a one-off, statutory pardon will not prevent the ongoing harm of Labour's war on drugs, it will undo some of the past harm. But to fix things properly, clearly we need a government which will actually care, one which will commit to change. And we all know that that isn't going to happen under either of the status quo parties.

Bugger

Preliminary referendum results are out, showing that cannabis legalisation was defeated, 46.1% to 53.1%. There's a gap of almost 170,000 votes, and its highly unlikely that the specials will be that disproportionate (OTOH, they're probably a different electoral population, swinging younger and more liberal on this issue, but that's probably too big a gap to make up). The government has already indicated that it will "respect the result" of the referendum and that "recreational cannabis use will remain illegal in New Zealand", so we'll see the olds' pointless "war on drugs" and empowering of gangs continue for another three years at least.

(Oh, and Ardern has finally revealed that she voted "yes". So she wants to be on the right side of her voters, but at the same time was too chickenshit to come out and say it when it might have made a difference. Labour's lack of moral courage and its unwillingness to stand for anything or actually lead and convince us to follow strikes again!)

On the plus side, Death With Dignity passed in a landslide, so that will automatically become legal in November next year.

How I'm voting in the referenda

In addition to electing a government, we also have two referenda to vote on this election - one on legalising recreational cannabis, and one on euthanasia. I'm voting "yes" to both, and I encourage everyone else to do the same. Here's why.

On cannabis, it is patently obvious that decades of prohibition is ineffective and counterproductive. It is a colossal waste of police time and money, and a constant enabler of police racism. I agree with the Drug Foundation that the best way to minimise the harm - including the harm of over-policing - done by cannabis is to manage it as a health issue rather than a criminal one. And that means treating it like alcohol or tobacco, and taxing and regulating it rather than sticking people in jail. But underlying the empirical policy argument is the fact that I just don't care what consenting adults do to themselves in private, and that's the real reason I'm voting "yes".

On euthanasia (or "End of Life Choice" as we're calling it now), I laid out my reasons for supporting it back in 2013, when an earlier version of the bill was before Parliament: we are all going to die, some of us slowly and painfully and without dignity, and it is better that people control that process themselves and go out on their own terms if necessary than forcing them to suffer. That both respects human dignity and freedom, and minimises harm (including, again, the harm of over-policing, both in the form of prosecution of those who assist suicide, and the political oppression of those democratically advocating for a change in the law).

In both cases, I'm pleased that we're voting on actual legislation, though displeased that the government was too chickenshit to pass the Cannabis Legalisation and Control Bill first so our vote would actually be binding. All we have on that issue is a politicians' promise - which as we all know, isn't worth the hot air it was made with. Which is not exactly going to encourage voters to treat it seriously. I'll be interested to see if there is a difference in turnout between the referenda - and if the cannabis referendum has lower turnout, we will all know where the blame lies.

Parliament's dereliction of duty on human rights

Last month, I submitted on the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill, arguing that while it was a step forward, Parliament had been a poor guardian of our human rights and that the bill needed to be stronger. Today, we have another example, in the Attorney-General's report of serious human rights problems with the Land Transport (Drug Driving) Amendment Bill, which violates the rights not to be subject to unreasonable search and seizure; not to be arbitrarily detained; and to be presumed innocent until proven guilty.

The problems are fixable, and the select committee will almost certainly (mostly) fix them as a result of this report. So isn't this the system working as designed? No. Because the bill passed its first reading on 6 August, while the Attorney-General didn't report on it until 2 September - meaning that MPs voting on the first reading were deprived of crucial information on the bill they were voting on. Which is not how the BORA is meant to work.

But this wasn't just a fuckup: it was also illegal, because s7 of the BORA requires the Attorney-General to report on apparent inconsistencies when a Bill is introduced (in this case, on 30 July), not a month later after it has already passed its first reading. And this being a government bill, there was really no excuse for the failure. We can speculate about the reasons - internal dysfunction, a cynical abuse of power (an inviting interpretation given that Parker delivered a negative BORA vet against a member's bill on the same grounds just two years ago), but ultimately its irrelevant. What matters is that once again, the "safeguards" built into the BORA to ensure that the House takes our human rights seriously have been pissed on, and once again Parliament has shown itself to be derelict in its duty to protect our human rights. And the only credible response to their consistent refusal to do their job properly is to take it off them and give it to someone who will: the courts.

Finally, in the past Ministers have typically responded to negative BORA vets with a contemptuous response, effectively saying that they don't care. Sadly, it seems that the Greens' Julie Anne Genter has joined this vicious little club:

Genter said last year more than 100 people died in crashes where the driver was later found to have drugs in their system.

She said she was comfortable with the legislation cutting across the Bill of Rights if it saves lives.

Literally the first part of the Greens' human rights policy, in bold Green H3 lettering right at the top of the page, is "Legislation should always uphold human rights". Followed by "The Bill of Rights Act should bind the government". But I guess Genter cares about that as much as James Shaw cares about their Education policy calling for the defunding of private schools. Again, we expect better from the Greens. Genter is not Crusher Collins. So take off that Ministerial hat, and be better.

Correction: The second part of this post relied on Julie Anne Genter's words as reported by RNZ. I have been informed that Genter was misrepresented, and RNZ has now updated its story. She is now quoted as saying:

Genter said last year more than 100 people died in crashes where the driver was later found to have drugs in their system.

"Ultimately both random drug driving testing and the existing breath testing regime will push up against some of the rights under the Bill of Rights because we are asking a large number of innocent drivers to go through a mandatory test.

"Our ultimate goal is to balance those rights with people's rights to be safe on the road and protected from people who choose to drive while impaired."

Which seems like a much more appropriate view, and one which is consistent with Green Party policy. I apologise for comparing her to Judith Collins.

The cannabis bill and the referendum

Yesterday, the government released its draft Cannabis Legalisation and Control Bill, which will be put to a non-binding referendum at the next election. I'm not a drug policy expert, but Russell Brown is, and he thinks its pretty good. And pretty obviously, it will be a massive improvement on the status quo, which criminalises a huge number of people for mostly harmless private behaviour, while legitimising significant police intrusion, not to mention a total waste of resources. So, come referendum time, I will be supporting it.

Of course, there is still the problem that that referendum is non-binding, so no matter which way we vote, the government could just ignore it, or change the regime under us while claiming public support for their version. The government's process here is completely unsatisfactory. They clearly have an idea of what policy they want to put to the public, but lack the commitment to actually stand behind it or stand behind our right to decide on it. So as usual for this government we have bullshit half-measures: a non-binding referendum on a concrete proposal. Instead of wasting our time like this, they should do it properly: pass the law, with a referendum-based commencement clause - exactly as has been done for the End of Life Choice Act.

"Pure sophistic bollocks"

That's how normally mild-mannered ex-MP Peter Dunne describes the government's excuses on its "binding" cannabis referendum:

The Minister tries to justify his position by saying that no Parliament can bind its successor Parliaments.

This is, to put it politely, pure sophistic bollocks.

Every piece of legislation passed and regulation promulgated by every New Zealand Parliament since our first Parliament met in May 1854 has to some extent or another bound successor Parliaments. Indeed, if those successor Parliaments have not liked laws passed by their predecessors, they have either repealed or amended them.

That is the stuff of politics and political discourse is all about, and governments have always reserved the right to upend the legislation of an earlier government if they have not liked it, and to replace it with something more akin to their own way of thinking. The notion that responsible governments have demurred from doing things on the grounds they might bind their successors is as nonsensical as it is fanciful. Indeed, only a few months ago, before it was snookered by New Zealand First, the present Government was proposing to legislate during this Parliament for a capital gains tax, to be implemented in the next Parliament should the Government be re-elected. There were no scruples about binding future Parliaments then!

As Dunne points out, this will be the first government-initiated referendum in New Zealand history not to have an immediate, binding result. Which turns it into a fluffy PR exercise, a fraud on the New Zealand people. And we should not tolerate it.

The fix

So why did the government choose to have a non-binding referendum on cannabis? Watching Question Time today, the reason is clear: the Prime Minister is going hard on the fact that all three government parties have committed to pass the law if the people vote for it - and even had the gall to claim that that promise is more binding than a self-executing law (because, in theory, a future parliament could repeal it. What stops said future parliament from repealing whatever law politicians promise to pass is unclear). In other words: if you want cannabis legalised, you have to re-elect the government.

And so a binding referendum has been transformed into a naked scam for votes, so Labour Ministers can keep their jobs and their one-percenter salaries. They are treating the public with utter contempt here. And we should punish them for it.

Not binding

The government has revealed its plans for its "binding" cannabis legalisation referendum. As demanded, people will be voting on detailed legislation, laying out the purchase age, home-growing options, and regulatory regime, including an advertising ban. But will it actually be binding? Here's what the government says on that:

“The voters’ choice will be binding because all of the parties that make up the current Government have committed to abide by the outcome.

“We hope and expect the National Party will also commit to respecting the voters’ decision.

This isn't "binding" in any sense of the word. Its just a politician's promise. And as we've all learned over the last decades (and indeed from this very process), politicians are lying fuckers who will ignore their promises the moment it is politically or personally advantageous to do so - and then lie to you to your face and claim they haven't. Their "promises" mean nothing. Pretending that they do - let alone that they mean something over other parties - is simply an insult to the public.

As for why they've chosen to do this, NZ First hates drugs and doesn't want legalisation, let alone to actually vote for it. As for Labour, while most of them probably want legal cannabis, as with pretty much everything else their inherent chickenshittedness means they don't want to pay the political cost of actually making it happen, preferring for change to happen by magic instead. And so instead of a binding referendum with certainty not just about the proposal, but that it will actually happen, they're giving us a glorified public opinion poll with no certainty at all. And under those circumstances, I'm not sure why anyone should bother participating in the farce.

Binding means binding

Over the weekend National leaked a Cabinet paper showing that the government was considering making the 2020 cannabis legalisation referendum non-binding. The government's response? Rather than saying that they stand by their earlier promise of a binding referendum, Justice Minister Andrew Little instead decided to muddy the waters over what "binding" means:

Justice Minister Andrew Little has guaranteed that next year's cannabis referendum will be binding, but says he will explain "what binding actually means" when the next details are announced.

[...]

Mr Little told RNZ the government stood by its commitment to hold a binding referendum alongside the 2020 election, but he suggested the word "binding" could have several interpretations.

"We made the decision at the end of last year for a binding referendum. That decision remains," he said.

"[But] once Cabinet has made its decisions, and we're in a position to announce the next phase ... we'll be able to explain what 'binding' actually means."

FFS. Binding means binding. We've held binding referenda in the past - most notably over MMP - and we know how to do it: pass a law and have commencement depend on the referendum result. If it passes, the law comes into force; if it doesn't, it doesn't. Labour has made a commitment to both the Green Party and the New Zealand public to do this. For them to be getting cold feet now and demanding that we be satisfied with a politicians' promise does not engender trust, or encourage participation. Because we all know what a non-binding referendum means: that the government has no intention of respecting the result.

A start on odious debt

Last year, when the government finally admitted that the meth-testing industry was a scam and that they had wrongfully evicted hundreds of state housing tenants on the basis of bullshit "meth tests", it moved swiftly to compensate its victims. But that's not enough - some of those it evicted ended up in emergency housing, which heartless bastards WINZ charged them for. But now, the government is wiping and repaying that odious "debt":

The Government is cancelling up to $3.2 million of debt racked up by hundreds of people who were wrongfully kicked out of their Housing NZ homes over a flawed methamphetamine test.

But the debt write-off won't cover social welfare payments for medical or dental costs, nor is compensation being offered for any private debt that followed the evictions.

Last year Housing NZ apologised after admitting to using a methamphetamine test that had little merit and led to about 800 tenancies being shut down. The test was 10 times lower than what it should have been, and based on guidelines not meant for anything but former labs.

Its a start, and a good one - but its also obvious that it doesn't go far enough. These people incurred significant costs due to a wrongful decision by the government. And the government should pay every last cent of those costs, in addition to compensation for the wrong they did.

But even that isn't enough. Because WINZ's "debt" for emergency housing - essentially incurred because either HousingNZ or WINZ failed to do their job by providing a house - is inherently odious. Its not enough for WINZ to stop charging people for its failures - they need to wipe these "debts", and repay every dollar that was "repaid" to them. Our government agencies should not act like slumlord loansharks. it is that simple.

A referendum on the green

Last week Parliament legislated for a medicinal cannabis regime. And today, the government has followed it up by announcing a referendum on recreational cannabis at the 2020 election:

A binding referendum on legalising cannabis for personal use will be held at the 2020 general election.

The referendum is part of Labour's confidence and supply agreement with the Green Party, but wording of the question is yet to be confirmed.

Justice Minister Andrew Little says the Electoral Commission will now get on and start planning for it.

A lot will depend on the exact question (and hopefully it will be an MMP-style one with the legislation already passed and waiting for a referendum to come into effect). But the current law is an ass, is widely ignored, and infringes fundamental liberties. Its really not the state's business how adults choose to get high, and their role is rightly limited to product safety and public impairment. So, unless its obvious bullshit designed to give legalisation in name only, I'll be voting yes.

The indoor vaping ban

The government has announced plans to including vaping in the Smokefree Environments Act, banning it from restaurants, bars, and workplaces. Which is fair enough. I don't really care what people do to themselves with informed consent, but when you're emitting clouds of noxious crap, that no longer applies, and its perfectly reasonable to tell people to take that shit outside. As for advertising and display restrictions, that should depend on the harm they do. The evidence on that seems to be that they're significantly less harmful than conventional cigarettes, and that supports a lower level of regulation (and in fact, greater availability to allow for harm reduction). The Ministry of Health's Regulatory Impact Statement goes over these issues, and it looks like they support exempting e-cigarettes from most of the display restrictions. But it also recommends not including vaping in the Smokefree Environments Act, so the government has chosen a much tougher stance there - which suggests they may be more restrictive on display as well. It will be interesting to see what legislation finally emerges.

Doing the right thing

Back in May, the Prime Minister's Chief Science Adviser revealed that the meth-testing industry was a scam, and that hundreds of Housing NZ tenants had been evicted from their homes under false pretences. Now, Housing NZ will be compensating its victims:

A report by Housing NZ into its response to methamphetamine contamination shows the organisation accepts its approach was wrong and had far reaching consequences for hundreds of people, Housing and Urban Development Minister Phil Twyford said.

“Housing NZ acknowledges that around 800 tenants suffered by either losing their tenancies, losing their possessions, being suspended from the public housing waiting list, negative effects on their credit ratings or, in the worst cases, being made homeless.

“Housing NZ is committed to redressing the hardship these tenants faced. This will be done on a case by case basis and the organisation will look to reimburse costs tenants incurred, and make discretionary grants to cover expenses such as moving costs and furniture replacement.

“They will also receive a formal apology from Housing NZ.

Good. The previous government intentionally made people homeless on poor evidence and fake science. They have an obligation to put things right. But I don't think it stops with Housing NZ. Private landlords also evicted people for meth "contamination". They should be forced to compensate their victims too. And then there's the meth-testing industry itself, which has turned out to be nothing more than a giant scam used to justify a vicious war on the poor. It would be good if they could be held accountable in some way.

National supports democracy on drugs

Surprise, surprise! National supports democracy on drugs!

If the public votes in favour of legalising cannabis in a referendum, a National-led government would change the law accordingly, National Party leader Simon Bridges says.

[...]

Mr Bridges said National would enact a law change if that was what New Zealanders wanted.

"Oh I think we've got to, I mean we've got to go with what the people want and what a referendum tells us.

"We've got a bit of water to go under the bridge, we've got to see the question, we're going to have an informed debate I hope on the issues, but absolutely on principle we support referendums and their outcomes."

Compare this to the government's bad-faith approach, where they have explicitly refused to be bound by the results of the vote they themselves have demanded. At the same time we should also remember that National doesn't actually give a shit about democracy and is happy to ignore referenda when they go against the interests of their rich donors and cronies. On this issue, they're simply motivated by a desire to embarrass the government. But the support of useful idiots is still useful, and hopefully it will force the government to do the same thing (or see the election turn into a vote on implementing their referendum).

Sanity in Canada

Canada has taken a major step towards ending America's insane "war on drugs", by legalising recreational cannabis use:

Recreational cannabis use in Canada is to become legal after the Senate approved the legislation.

The measure is expected to come into effect in two or three months, with the exact official date to be set by the government. Prime minister Justin Trudeau has previously emphasised that the Cannabis Act will be implemented without delay.

The landmark agreement, making Canada the first G20 country to legalise recreational use, came to pass after the Senate voted 52 to 29 to approve the legislation.

It means adults will soon be allowed to carry up to 30g of dried cannabis (or its equivalent) in a “public space”, which includes personal vehicles. Those caught with more than 30g could face up to five years in prison. It will remain illegal for one adult to sell cannabis to another, unless they are a licensed retailer.

Exactly what that means will vary from province to province, but one thing which is guaranteed is far fewer arrests, far less police time wasted on how people choose to entertain themselves, and far fewer lives ruined.

Meanwhile in New Zealand, the government has promised to give us a vote, but not to be bound by the result. Which shows us how deceitful and dishonest they are on this issue, and how committed they are to perpetuating the persecution of recreational drug users.

A tiny start

When the government's Chief Science Adviser revealed that the meth-testing industry was a scam, and that thousands of people had been evicted from their homes under false pretences, Housing New Zealand's initial reaction was to stonewall and pretend it was nothing to do with them. Now, they've taken a tiny first step towards admitting responsibility:

Housing New Zealand chief executive Andrew McKenzie has apologised to state housing tenants whose lives were disrupted by evictions based on bogus methamphetamine levels.

He also said Housing New Zealand's (HNZ's) blacklist of tenants banned from going into state houses has been wiped clean, and tenants who incurred costs should be paid back.

"We really regret the way this has played out and we certainly apologise to all those people who had their lives disputed as we've shifted them out of their homes," McKenzie told Radio New Zealand today.

Which sounds good, but note what he's not doing: promising that those debts will be wiped, and promising to compensate victims for the additional costs (and hurt and humiliation) Housing New Zealand's evictions imposed on them. People were literally left homeless, many were forced into debt to WINZ for emergency housing, one was forced to destroy all her possessions. And Housing New Zealand owes them a little more than minimising talk of "disruption" and that they're not going to pursue them for bogus and odious "debt".

What it does owe them is Andrew McKenzie's head on a spike. Because he presided over all of this, he implemented the harsh and oppressive policy of evictions, and he needs to be held accountable for that. A mere sacking doesn't even begin to compare to making someone intentionally homeless - but it would be a tiny start.

Bad faith

That's the only way to describe the Prime Minister's refusal to commit to being bound by the result of the marijuana referendum if people vote to legalise it for recreational use. Firstly, its bad faith with the people of New Zealand: she's promising us a vote, but refusing to pay attention to it. So why bother with the charade? Its another example of politicians earning their reputation as dishonest liars, and she deserves every bit of that. Secondly, it's bad faith with her support parties: she promised this to the Greens in their confidence and supply agreement, and the implication in that promise is that the will of the people would be obeyed. By refusing that, she's basicly tearing up the agreement - and inviting the Greens to do likewise. (say, by refusing to support NZ First's awful party-hopping legislation until Labour keeps its promises to them).

Of course, if you're promising a binding referendum, the public should know exactly what we are voting for, as we did with MMP and the New Zealand flag. In this case, that means either publishing the agreed legalisation law, or actually passing it with a commencement clause saying that it will only come into effect if a referendum passes. But this would take control over this issue away from the politicians and give it to the people - which seems to be exactly what Jacinda Ardern opposes.

A better way to deal with drugs

There's a major symposium on drug laws happening at Parliament this week. As part of this, the New Zealand Drug Foundation has stepped up where politicians fear to tread, and proposed a major reform of our drug laws: one based on harm-minimisation and treating drugs as a public health problem, rather than a crime:

The first part of our model drug law is based on the Law Commission’s 2011 recommendations – which proposed a model of health referral instead of criminal convictions and of removing any legal barriers to innovative harm-reduction practices – and the Portuguese model of reform. All currently illegal drugs would be decriminalised. If police find a person in possession of drugs, they would issue a ‘mandatory caution’ which includes health information and legal advice.

After one, two or three cautions (depending on the drug), the person would be required to attend a brief intervention session to assess whether further health assessment and treatment is needed. If so, a range of non-compulsory treatment options would be available. To ensure the focus remains on improving health outcomes, any legal penalty for not attending the intervention session would be restricted to an option to reschedule or a low fine.

They're also proposing a regulated cannabis market, a commercial supply model aimed at preventing the formation of a powerful industry lobby group (as has happened with alcohol and tobacco), and much more money for drug-related health issues (funded by the savings on the current pointless enforcement costs). All together, it seems like a much better way to deal with drugs than at present: one which recognises the reality of the failure of the war on drugs, respects freedom (at least much moreso than at present), and ensures that people who need help get it (while those who don't don't get harassed and criminalised). The question is whether our politicians will take this opportunity to fix a law which obviously isn't working - or whether their prejudices will cause them to keep on making the same cruel and expensive mistakes they are at present. Sadly, I think we all know which option they'll choose.

It's on!

A ballot for four Member's Bills was held today. The first bill out? David Seymour's End of Life Choice Bill. So, we finally get to have the death with dignity debate we've been waiting for for the past few years. And this time, hopefully, it will pass.

But it gets better - because Julie Anne Genter's Misuse of Drugs (Medicinal Cannabis and Other Matters) Amendment Bill was also drawn from the ballot. The bill allows people with terminal illnesses or debilitating conditions to use, possess, or cultivate cannabis, and relatives of such people to possess or cultivate it for the purposes of supply. So we're going to have a death with dignity debate and a medical marijuana debate at the same time. Watch the politicians scatter!

Its a great example of how the member's ballot can be used to get issues on the agenda, whether the government wants to deal with them or not. Now, if only someone would do it for repealing the "crime" of blasphemy.

(Also drawn: two National Party bills, one increasing sentences for livestock rustling, and the other banning gang members from local government buildings).

Is drug reform coming?

Fifteen years ago, Peter Dunne's role as Associate Minister of Health in the Clark Labour government was to consistently stymie any move towards drug reform and cannabis decriminalisation. How things have changed:

Change to New Zealand's drug laws is "inevitable" - and associate health minister Peter Dunne says he's willing to lead the debate on it.

Dunne envisions an Aotearoa where the drug trade is no longer controlled by gangs, but by the law - with licenced drug sellers able to cultivate and distribute tested and approved class C drugs such as cannabis.

He cautions he is not calling for the legalisation and decriminalisation of cannabis and other class C drugs, but rather a change to the way they're classified.

Dunne believes New Zealand could first move to the Portuguese method of drug control, where anyone caught with less than 10 days worth of drugs in their possession won't be prosecuted, but will instead be fined and sent for treatment.

There's more on Public Address about what this would look like in practice (and the insanity of our current drug laws) here. But given the empirical evidence of the utter futility of the drug war and the success of decriminalisation policies, its fortunate that we have an Associate Minister who is actually open to that evidence, rather than simply ignoring it.

And this poses an obvious question? Where does Greg O'Connor stand on drug reform? Because while the electorate battle in Ohariu is meaningless in terms of the overall election outcome, it may have significant policy implications.