Advocating for decriminalisation rather than legalisation would've been the more pragmatic way to achieve cannabis law reform, NZ Drug Foundation's CEO admits - but he and the Greens agree it wouldn't have been "the right thing to do".
The Green Party made the cannabis legalisation and control referendum one of their bottom lines when negotiating with Labour after the 2017 general election. It was a demand Labour succumbed to to form a coalition government and regain power from National.
But just two weeks out from the referendum, the picture is far from rosy for the 'yes' campaign.
A Newshub-Reid Research poll shows public support for cannabis legalisation has sunk to a low of 37.9 percent, while 50.5 percent of Kiwis plan to vote against it at this month's referendum.
Ross Bell, who heads up the pro-legalisation Drug Foundation, acknowledges the referendum presents an opportunity for law change but says it should never have been put to a public vote.
"I think it's wrong that we're having to put something so complex and important to a referendum - that's the first mistake," he told Newshub. "Having said that, no one else was ever going to put cannabis on the table.
"As for whether we should decriminalise first as a stepping stone to legalisation, politically and pragmatically it may have been the correct step to take. But that's a political question - it certainly isn't the right thing to do."
Green Party drug law reform spokesperson Chlöe Swarbrick says it's been a challenge for 'yes' campaigners to convince some Kiwis that legalisation is a legitimate option, as they're having to challenge decades of negative rhetoric stretching back to the start of the War on Drugs.
But she's not worried by the poll results - and like Bell, she never considered the easier, more palatable approach of decriminalisation a potential course of action.
"I have no regrets about fighting for the right thing to do, even though it is incredibly complicated and nuanced," Swarbrick said.
"I very strongly believe that the right thing to do was to advocate for legalisation, because that is the only way that you meaningfully cut to this issue inside a legal framework."
How cannabis decriminalisation would change NZ
Swarbrick sought a change to how cannabis offences are enforced almost as soon as she entered Parliament in 2017 - and last year, after 18 months of advocacy, an amendment bill she oversaw passed its third reading in Parliament and became enshrined in law.
The amendment to Section 7 of the Misuse of Drugs Act - hailed by MPs as the most significant reform in the legislation's 44-year history - allowed police to use their own discretion when deciding whether to prosecute for a cannabis offence.
Police are now required to consider whether "a health-centred or therapeutic approach" would be more beneficial to the public interest before they pursue a prosecution.
National MPs, who voted against the amendment bill when it was introduced to Parliament, are among those who argue this means cannabis is essentially already decriminalised in New Zealand.
They have a point - after all, the introduction of this 'decriminalisation-lite' approach in August 2019 saw cannabis charges instantly drop by nearly 50 percent, while the number of health referrals doubled.
But by Swarbrick's own admission, the amendment she helped pass "isn't working all too well" because discretion in the hands of police has proven to be very different to a clear directive not to prosecute.
"Decriminalisation has effectively been in place for Pākehā for a very long time," she said.
"That's probably why most people would say they've seen friends and whānau use cannabis with, effectively, impunity. But the data shows us that's not applied on an equitable basis."
Swarbrick cites a report released by the Prime Minister's Chief Science Advisor (PMCSA) in July, which shows evidence of "discriminatory policing and justice outcomes" in New Zealand as a result of uneven application of our cannabis laws.
It shows Māori are three times more likely to be arrested and convicted of a cannabis-related crime than non-Māori, almost twice as likely to go to court over a first offence, and nearly seven times more likely to be charged - and that's after accounting for different usage rates.
Swarbrick says decriminalising cannabis would help address this inequity by removing convictions, which she likens to "an anchor around somebody's neck" that makes it harder to get a job, travel overseas and access education.
But she argues decriminalisation is ultimately a poor approach, as it also has the unintended consequence of further enabling and empowering a system of tinny houses and the black market.
"It's kind of like pretending cannabis comes out of nowhere, because there is still a supply chain involved," she said.
"You could ironically create a perverse incentive. If you simply decriminalise the substance, then it could be that people feel like they can now use it, because they're not going to be criminalised - and all of a sudden, you have more people engaging in the criminal black market."
Bell says decriminalising cannabis has some important benefits - namely that it stops Kiwis getting a criminal record for using an illegal substance most of us will try at least once in our lifetimes - but agrees it comes with too many problems.
"It is a halfway house to legalisation, but it's a really, really bad one," he said.
"Decriminalisation still leaves control of a potentially harmful substance in the hands of an illegal market... So while may people may think it's a stepping stone, it's a really stupid one.
"The Greens were right to push legalisation rather than decriminalisation."
Why cannabis legalisation is 'only way' to reform NZ's drug laws
The 'no' campaign has many reasons for opposing a cannabis law change, the most obvious of which is that legalising weed would see it become more widely used, increasing the harm it causes in our communities.
Recreational cannabis is associated with a range of negative outcomes, a 2019 Royal Society Te Apārangi report found - including mental illness, drug use disorders, respiratory illness, impaired cognition, increased road accidents, and lower birth weight in babies.
But Bell says these harms are "low to moderate" and most prevalent among young people and chronic users.
And he argues that even if use does increase, legalisation would remove the criminality, fear and stigma around cannabis, meaning Kiwis at greater risk of negative health impacts would find it easier to get help.
"The fact you can then start putting money into drug prevention, education and treatment means it's easier to help that proportion of people who might get into trouble with cannabis use," he said.
For these reasons, Bell says legalisation was the only way to create meaningful change.
"With decriminalisation, you don't get the public health benefits you get with legalisation and regulation," he said.
"You don't get the potency limits; people don't know what they're buying or what compounds are in it; they don't know whether it's mixed with something else; the vast amounts of money in cannabis sales don't benefit the community, they benefit organised crime.
"People who are saying 'I'd rather have decriminalisation' and end up voting no [in the referendum], they really need to think about what it is they're voting for. They're voting for the status quo - which is dreadful - and there isn't another option to pick."
Swarbrick says fundamentally, the question of which way to vote in the referendum comes down to whether we want to stop rubbing shoulders with the black market and implement controls on the weed that's consumed in New Zealand.
"Do we want to get control of cannabis sale and supply?" she asks. "Do we want to institute an age limit? Do we want to start implementing the same sort of controls that we've used to reduce tobacco usage?"
What Greens will do if NZ votes 'no' at the cannabis referendum
While Bell is adamant legalisation was the correct approach to take, he worries what will happen if the referendum result reflects the latest polls and New Zealanders vote it down.
"The biggest thing that'll come back and bite us if we lose is if it takes wider reform off the agenda for a long, long time," he said.
"Just like the flag referendum, we're not going to get the opportunity to change our flag for a very long time - and with losing the cannabis referendum, there is no other option. If people vote no, you don't have the Government saying 'don't worry, we've got this other plan' - there is no plan B.
"It's either yes, we get a new system that's so much better; or no, we're stuck with the system we've got, and we scare politicians away from talking about this again."
Swarbrick says she's hopeful of getting Kiwis who wouldn't normally vote - namely young people and Māori - into the 'yes' camp in the final fortnight before the referendum.
"I'm really cognizant of how these demographics that are most inclined to support cannabis legalisation and control also happen to be demographics who are disenfranchised and disengaged from our political system," she said.
"There is a real call to action to ensure that everybody who wants to get this across the line turns up and votes, because I can guarantee that those who are rallying and whipping up as much fear, doubt and uncertainty as they can will be turning up to the polling booths."
At the moment, Swarbrick is fully focused on getting Kiwis to vote 'yes' - one of three goals alongside winning Auckland Central and getting the Green Party back into Parliament - but admits the Greens will have to re-evaluate if the referendum fails.
"It's going to be a matter of quantifying where we're at, how people are feeling about things and how the referendum landed. If it doesn't end up happening, we'll review after that fact."
But she says she'll have no regrets about fighting for cannabis to be legalised if Kiwis vote to keep it illegal - and is encouraged by the way the public discourse on drug law has "matured and progressed markedly" in the lead-up to the referendum.
"People aren't able to rest on their laurels and give a blanket no and not be able to rationalise it," she said. "I think we have got to a level of granular detail that speaks to people engaging in this topic in a way that perhaps wouldn't have otherwise.
"With the rest of society around the world moving in this direction, we're realising that drugs are a health issue - not a criminal issue."
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