In the aftermath of the cannabis referendum, we're stuck in the worst of all worlds. We're still treating as a crime something half the country does not believe should be one.
Criminal law should reflect a broad societal consensus, which demonstrably does not exist with respect to weed. Every cannabis-related prosecution now will call into question the moral force behind the charges.
It's not sustainable, and decriminalisation is the only responsible step forward. The public is more than ready: in a poll conducted for the Helen Clark Foundation, 69 per cent supported either full legalisation or decriminalisation. There's your consensus.
With the benefit of hindsight, it's clear we approached the question of cannabis law reform in entirely the wrong way. That's what has left us stranded with an untenable status quo.
Given how heavily the deck was stacked in favour of reform opponents, it's remarkable there was only two per cent in it.
There were at least five reasons it failed.
First, the framing of the debate was disastrous. It asked Kiwis to weigh in on a specific piece of legislation rather than the broader question of whether we should pursue reform or embrace the status quo as a matter of principle.
This gave opponents a major strategic advantage in that it offered them a big target while forcing the Yes campaign to defend a detailed regulatory regime with a scary sounding name. You couldn't come up with a less appealing way to frame the debate than asking voters what they think of the "Cannabis Legalisation and Control Bill".
By contrast, this is how voters in deeply conservative Montana were asked to view the question of legalisation just weeks after our own vote: "Under the Montana Constitution, a person 18 years of age or older is an adult, except that the legislature or the people by initiative may establish the legal age of purchasing, consuming, or possessing alcoholic beverages [the proposal amends the Montana Constitution to allow the legislature or the people by initiative to establish the legal age for purchasing, consuming, or possessing marijuana]."
A second question on the ballot proposed an age limit of 21 years old; created rules for marijuana use, including a 20 per cent tax on marijuana sales; and required the state government develop rules to regulate the industry. The first initiative passed with 58 per cent of the vote; the second, with 57 per cent. Amazingly enough, legalising pot won more popular support in Montana than Donald Trump.
Three other US states - New Jersey, Arizona and South Dakota - also endorsed legalisation in November's election. In each case, the question was framed in similar ways to Montana, asking voters to endorse a plan that would impose an age limit, enact a tax on marijuana sales, and empower the state to establish a regulatory regime.
If the debate had been framed in that way here, Yes would have won in a landslide.
The second issue that derailed reform was campaign spending limits, which greatly favoured the No campaign. Under the Electoral Act, referendum campaigns are allowed to spend no more than $338,000 in the two months leading up to the vote. This is a truly paltry sum. To give some context, the Government spent $1.3 million on Covid advertising in just the last two weeks of February.
While it's proper to have strict rules in place to constrain the influence of money in politics, the spending limits proved detrimental to democracy in this case. Whereas the Yes campaign was required to promote a needlessly complex proposal and defend against wave after wave of disinformation, all opponents needed to do was shout "No" at the top of their lungs. If voters don't feel sufficiently informed, they will naturally default to the status quo - and that's what happened here.
Third, the profound disconnect between some Māori leaders and their communities on this issue blunted otherwise potent criminal and racial justice arguments. That Māori are three times as likely to be charged with cannabis offences, despite roughly equivalent rates of use, is a devastating proof point - but this was constantly undermined by leaders in the community who actively campaigned against change. They ought to be feeling whakamā.
Fourth, given the margin, there's no question the NZ Medical Association's bungled intervention on the referendum debate gave a boost to the No campaign. Despite walking back her opposition two weeks before the vote, NZMA chair Kate Baddock's earlier statement - made without any consultation with her members - had already inflicted more than enough damage to account for the two-point margin.
Finally, in such a close-run race, Jacinda Ardern's decision to remain publicly neutral proved decisive. While it's simplistic and unfair to blame the PM unduly, given the myriad other factors discussed above, there's little doubt that her public support would have persuaded enough voters to change the outcome.
However, as much as the Government would like to put this issue in the rearview mirror, the reality is the post-referendum status quo is more injurious than the old one. The injustice is compounding with every new charge and conviction.
Parliament should not use a narrow defeat in a deeply flawed referendum as an excuse for inaction. Decriminalisation may only be a half step forward, but it's one we must urgently take.
• Shane Te Pou (Ngai Tuhoe) is a company director at Mega Ltd, a commentator and blogger and a former Labour Party activist.