Referendums on Public Policy Questions: The Case of New Zealand

Janet McLean

University of Auckland

Two referendum questions appeared on the ballot paper at New Zealand’s October 2020 election. Unlike previous government-sponsored referendums, these were not questions which, in New Zealand, would usually be considered of constitutional moment. Instead, they raised issues of criminal justice and health policy, which would usually (as it was with the abortion law reform legislation enacted in March 2020) be decided by democratic representatives. The first question asked whether voters supported the End of Life Choice Act 2019 coming into force. The second was advertised as allowing voters to indicate whether the recreational use of cannabis should become legal and asked if voters supported the proposed Cannabis Legalisation and Control Bill.

The End of Life Choice Act 2019 had its origins in a private member’s bill. Two earlier attempts to change the criminal law in relation to assisting suicide introduced by way of private member’s bills had been unsuccessful. This time the Bill received additional heft from the unsuccessful NZ Bill of Rights Act 1990 challenge to the Crimes Act 1961 in Seales v Attorney-General. In the High Court, Collins J accepted that the right to life was affected, relying on the arguments which had been successful in the Supreme Court of Canada case of Carter v Canada, but indicated that it was for Parliament to make such a far-reaching decision. The issue was taken up by ACT party MP David Seymour. His Bill was supported through three readings in Parliament, but the Labour Government’s coalition partner New Zealand First only gave support on the condition that it would go to the vote of the people before it came into effect. The Bill had been considered by extensive select committee hearings. It received royal assent. After it had received royal assent and before the referendum, palliative care physicians sought clarification of the conscientious objection provisions in Hospice New Zealand v Attorney-General (‘June 2020 EOLC Act judgment’). Outside of the courts and Parliament the wider public debate in relation to the referendum was somewhat muted given the dominance of concerns about COVID-19, and took place at a very high level of generality. Apparently official documentation distributed to voters described it as “the compassionate choice”. 65.1% of the voters at the referendum said ‘yes’, which means the End of Life Choice Act will come into force 12 month’s after the official result of the referendum was declared.

The second question asked voters whether they wanted cannabis legalised. This time, out of 2,908,071 votes cast (once special votes had been counted), 48.4% of voters said yes and 50.7% said no. Had there been a yes vote then the proposed Bill would have been introduced to Parliament and there would have been the possibility for further debate – especially about what exactly was meant by “legalisation” as opposed to decriminalisation and whether the proposed regulatory provisions were appropriate and workable.

The adoption of the referendum process for these kinds of questions is novel in the New Zealand political system and was in both instances a result of negotiations between the government and minor coalition or support parties. In the case of the assisted suicide question, New Zealand First – the populist, and socially conservative coalition party – was seeking political cover. (They flirted with insisting that the Abortion Law reform legislation too should go to referendum). The legislation had a vocal supporter in David Seymour of the right-libertarian ACT party who was rewarded in the election not only with a win in the referendum, but also by an increased presence in Parliament (ACT’s seats increased from 1 to 10). Somewhat ironically, ACT came to be associated with “compassion” against opposing voices dominated by palliative care physicians, and the wider medical profession.

What did people think they were voting for? We cannot be sure. But in my own efforts to inform local communities about the content of the legislation it was evident that people did not necessarily differentiate between assisted suicide (with or without consent) and withdrawal of treatment, though the Act was solely concerned with assisting suicide for competent and consenting adults. The High Court in the June 2020 EOLC Act judgment acknowledged there were a number of difficult questions raised by the legislation and its meaning. There are additional concerns about the protections from coercion which Parliament did not address. Presumably these issues will all have to be worked out in practice rather than by Parliament – even though the stakes are particularly high in these kinds of matters. The courts played an unusually significant role in the public debate.

There was comparatively little debate over the details of the cannabis reform, which was supported by the coalition government’s support partner, the Green Party, and was part of their manifesto. Green Party MPs have criticised Labour ministers and the Labour Prime Minister for not advocating for the proposed legislation. The legislation itself only appeared on the government referendums website as an “exposure draft” and was updated as late as May on the question of who could supply cannabis for sale. Again, the public debate was often muddled or incomplete. Some advocates emphasised medicinal cannabis (which was already covered by an existing regime) and there was little or no discussion of crucial matters such as how price would be determined or who would be allowed to produce cannabis for supply. The absence of detail should not necessarily have mattered because if people had voted ‘yes’, the Bill would have been thoroughly debated in Parliament. Nevertheless, holding a referendum was a pretty high-risk strategy for achieving public policy reform. The result may have forestalled drug law reform in the medium term. When the early results were showing a wider margin against, the then Minister of Justice conceded that any cannabis reform had effectively been taken off the table. The final count indicates that the vote is closer, and advocates for reform have used the closeness of the result to argue that a more health-based approach to drug reform should still proceed. Much will depend on how the result is interpreted. Can a “no” vote be taken as mandating decriminalisation of use but not full legalisation?

The use of referendums in these ways has muddled the role and place of representative democracy. In both cases, there is a question about whether ordinary processes of public policy reform and representative democracy can revisit these issues, or whether the “voice of the people” removes them from parliamentary and government consideration - at least for a time. On the upside, it has also been credited with getting people, especially young people, out to vote.

Janet McLean is a Professor of Law at the University of Auckland.

Suggested citation: Janet McLean, “Referendums on Public Policy Questions: The Case of New Zealand” IACL-AIDC Blog (26 November 2020) https://blog-iacl-aidc.org/2020-posts/2020/11/26/referendums-on-public-policy-questions-the-case-of-new-zealand