In early May Government released the long awaited Controlling and Regulating Drugs report from the Law Commission.
This final report contains 144 recommendations for reform of our 36-year-old Misuse of Drugs Act.
Importantly, the Law Commission has recommended our current law get scrapped and replaced with a new health-focussed law administered by the Ministry of Health.
The report articulates a clear way forward for a modern drug law that is fit for the 21st century. The report proposes a new approach to dealing with so-called ‘legal highs’, and introduces a mandatory cautioning and diversion scheme for lower level offending.
The Government is required to provide a formal response in a few months’ time – we are urging them to give the report the considered attention it deserves.
The Drug Foundation has produced a consultation toolkit to provide you with a range of relevant resources, and our analysis of the Commission's proposals. The toolkit will help you formulate your position and construct your submission to the Law Commission. www.drugfoundation.org.nz/moda/toolkit/about-this-toolkit.
The Drug Foundation has published its submission to the Law Commission's issues paper - "Controlling and Regulating Drugs" - on the reform of New Zealand’s drug laws. Go here to view our submission.
In this first video (10 minutes on YouTube), Law Commissioners Warren Young and Val Sim discuss their issues paper, and explain some of their key proposals. You can also read the interview - Getting our Act together - here.
This second video is from the same interview, but is 25 minutes long (on Vimeo) and covers MODA in greater detail.
In March 2008, the Law Commission commenced a review of New Zealand’s Misuse of Drugs Act 1975. The aim of the review has been to produce a new legislative framework that would better balance the criminal justice focus of our current drug law with the need to support the health of people who use drugs and to reduce drug harm across our communities.
In February 2010, just before the release of its first discussion paper, Matters of Substance spoke with Commissioners Warren Young and Val Sim about the progress of the review and the initial recommendations and options the paper puts forward.
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MoS: Why is the Law Commissioner reviewing the Misuse of Drugs Act?
Val: The immediate trigger was the Government’s concerns about new substances that emerged, such as the BZP in party pills, and whether their regime could deal with those substances. But there are a number of other concerns. The Act is now 35 years old, badly aligned with the newer National Drug Policy and very heavily focused on supply control. That means insufficient attention is paid to the other aspects like treatment, education and limiting drug harm.
Warren: The National Drug Policy is based on the principle of harm minimisation, and we think it’s important that any new legislative framework also reflects that policy objective. Unfortunately, harm minimisation is seen by many people as a proxy for a soft liberal approach to drugs or even an agenda for legalisation. That’s unfortunate because harm minimisation just simply means minimising the overall harm resulting from drug use. I think it’s very important we don’t get sidetracked by semantics.
MoS: One of the issues your discussion paper covers is drug harm. Is the principle of harm to others a key aspect of the review?
Warren: We’ve taken the view that any form of regulation of what people do in their lives can usually only be justified when it is necessary to prevent harm to others. Of course, when people are harming themselves, they’re also usually harming a range of other people.
MoS: What are New Zealand’s obligations under the various international treaties?
Val: There are three United Nations drug conventions that broadly require countries to prohibit the importation, exportation, production, manufacture, possession and use of a number of substances, but within that framework, there’s considerable scope for less restricted approaches, particularly possession and use. The conventions also recognise demand reduction and problem limitation as legitimate drug policy goals.
MoS: Most of those conventions are around prohibition. Has that limited the approach you’ve taken?
Val: Although there’s increasing disquiet about prohibition as a drug policy, still the international consensus is to stay within that framework, and New Zealand agrees. If one country is out of line with another, it risks all sorts of consequences, like drug tourism as happened in the Netherlands when they liberalised cannabis.
Warren: I think it’s important to be clear we have looked at policy options in the light of our international obligations. So, for example, it’s really not even on the table to legalise the commercial supply of cannabis because that would be contrary to those obligations.
I think it’s also worth adding that how we currently approach drugs is a rather peculiar all or nothing approach. Substances covered by the Misuse of Drugs Act, and largely covered by the conventions, we prohibit all together, but until we prohibit them, we largely have no controls over them at all. That means a whole bunch of substances can be happily supplied, sold and commercialised in a fairly unrestricted way, until we get round to saying, “This might be dangerous, and we need to prohibit it all together.” We think there is room for considering some controls over a new substance before we start having it supplied and sold at nightclubs.
One of the key issues with that is who any regulatory body would be. An option could be to use the body that already exists under the hazardous substances regime. Other options would be to create an entirely new body or to graft that function onto the existing Expert Advisory Committee on Drugs.
MoS: Some argue that any regime should be aligned with regulations around legal substances like alcohol and tobacco. Have you included these in your considerations?
Val: No, our terms of reference expressly excluded alcohol and tobacco. And rightly or wrongly, the different historical and cultural associations of alcohol and tobacco mean they have traditionally been regulated quite differently. Obviously, including them in this regime had the potential to complicate the review, but separately, of course, the Law Commission has been doing a review of the Sale of Liquor Act.
Warren: I think a lot of the issues, actually, have had some commonality. For example, the need to ensure that those who have alcohol or drug problems have adequate access to treatment and that there are sufficient resources available to deal with people who have dependency has cropped up in both reviews and really needs a very similar approach.
MoS: What’s the Commission’s preferred options around classification? Is it a useful tool to measure drug harm?
Val: A drug is classified as either Class A, B or C to determine the level of control to impose over it and the maximum penalties for misusing it. Class A drugs are very high risk, Class B are high risk and Class C drugs pose a moderate risk. But I think it’s now most experts agree some of the current classifications are simply wrong. For example, ecstasy is Class B, but most experts now say it’s less harmful than a Class C drug like cannabis. So if the system is retained, there needs to be a systematic review.
There are a number of other options. We could just not classify at all, have a single maximum penalty and leave it to the judges to determine what penalty applies to what drug, but that does leave them with a very broad sentencing discretion.
Another option would be to reduce the classification to two: very risky drugs and not so risky drugs. But this is probably too blunt an instrument as drug harms are more nuanced than that. It would be possible to create even further classifications, but too many classifications could result in even more difficulty defining drug harm levels and make sentencing even more of a problem.
MoS: So that brings us to the question of who should do the classifying.
Warren: Currently, it’s the Expert Advisory Committee on Drugs, which is made up of a range of experts and officials. However, we think the disciplines represented on that committee are not broad enough and suggest there should be a list of expert areas in the statutes and that members must have expertise in one or more of those areas.
Perhaps more importantly, we think the officials on that committee, that is, the representatives of Government departments such as Police, Customs, Justice and Health, should not actually be members. If you want to have an independent expert committee advising the Minister, then it ought to be genuinely independent. The problem with having officials on it is that they’re subject to ministerial direction.
MoS: A lot of your recommendations or preferences are based again on this concept of harm to others. The people causing the most harm are the high-end dealers in large-scale drugs. Those causing less harm are the ones in possession of drugs for personal use. Why have you decided to split harm that way?
Warren: I think the social response to drugs needs to be driven by where the most harm lies and how best to reduce that harm. People who are in the business to make large amounts of money by preying on others require a severe law enforcement response.
However, there is a very large pool whose very small-scale sale, possession and use is driven not by profit but simply because they are supporting their own addiction, supplying to others in their own drug circle or perhaps buying drugs in bulk. Sometimes, the most effective way of reducing harm resulting from that will be to have other forms of intervention, such as treatment, rather than prosecution.
MoS: Can you explain each of your options for reducing the harm the law may cause such people and how it could be used to get them help instead?
Warren: Well, the first one is simply that, when people are caught with small quantities of drugs for their own use or for small-scale supply, we give them a caution. If they accumulate two or three cautions, we start using criminal law.
A variant of that is instead of a caution, we siphon them into a treatment or education programme after the second or third time they’ve been caught.
Another option is to impose fines for people caught with small amounts. They have to pay the fine, but we don’t have all the costs and negative consequences of prosecution and conviction.
A third option would be diverting small-scale offenders into treatment or education programmes or community work instead of convicting them.
There are pros and cons of these approaches. The problem with fines, for example, is that many people simply accumulate them. We then have all the costs and problems of trying to enforce them, and people end up getting the sanctions they would have got in the first place. So, there are a number of issues that really need to be seriously thought about because, for small-scale offenders, there’s not a lot of evidence the current system is achieving much. Val: We can also add that diverting resources from prosecuting small-scale offenders to detecting and prosecuting large-scale commercial suppliers will do a lot more to minimise drug-related harm.
MoS: Some may accuse you of opening the door to legalisation with these proposals. Should people be worried about that?
Warren: There are a number of points to make here. First of all, people should have no fear we are pursuing some sort of hidden legalisation agenda here or even a soft liberal option. Our only focus is what’s likely to be most effective, and we hope people will focus on the options with that in mind. The other point is that none of these options are at all radical. All are either working or have been tried in a large number of other western jurisdictions including states in America, Australia and a number of European jurisdictions.
Val: And I think we could add that the evidence from those jurisdictions is that taking a less punitive approach hasn’t resulted in any significant increase in drug use.
MoS: So what do you say to those accusing you of being tough on alcohol and soft on drugs?
Val: I think we’d say that our starting point for each is exactly the same. We’re looking at what the evidence suggests is the best way of minimising harm. In our view, that means some tighter regulation around alcohol. In the context of drugs, because of our international obligations, we’re saying we retain the prohibition framework but that there are things we can do to minimise harm. So I think the two reviews are entirely consistent.
Warren: We should also note that alcohol causes massive harm in society. Clearly, it’s a drug that would have many more controls over it if it weren’t for the history and culture around it. The fact that we are proposing that other drugs ought to be dealt with in the same way as alcohol, in terms of treatment for example, doesn’t mean we’re being inconsistent. Far from it; we are being entirely consistent.
MoS: Your review supports the medical use of cannabis. Why?
Warren: In the issues paper, we’ve devoted considerable time to how much room there is for a medicinal cannabis scheme. It would currently be possible because, under the Medicines Act, you can seek approval for a controlled drug like cannabis to be used for medicinal purposes. Even as an unapproved medicine, it can be supplied by individual doctors under some circumstances. It hasn’t been used like that in New Zealand, but it certainly has elsewhere.
There is a lot of evidence that cannabis is effective in some circumstances, particularly for pain relief, so we think it ought to be seriously considered. However, if we went down that route, it would be important to ensure the form and the way in which it’s supplied are appropriately controlled.
MoS: In places like California, the medicinal cannabis regime is seen by some as a back-door way into legalisation. Is that what you’re trying to achieve here?
Warren: Most certainly not, and that’s why we say we need to think about the options for proper controls. Obviously, you can simply allow cannabis as a raw product under certain circumstances, but that’s problematic. It would be difficult to control its strength, its purity and to make sure that it’s not actually causing harm. And that’s why the Canadian government has decided it will totally control the production and supply of cannabis for medicinal purposes. So obviously, the first issue in a medicinal cannabis scheme is who is the producer and supplier? Does the Government do it? Does it license other people to do it and under what circumstances?
A second issue is how do people needing it for medicinal purposes access it? In some jurisdictions, people have to go on a central government register before it can be supplied. In other jurisdictions, it’s simply available by way of a doctor’s prescription. We’ve canvassed the pros and cons of those various possibilities in the report.
Val: I think one of the interesting features about the Canadian situation is its origins. The reason they set up a scheme was because their courts said that there were human rights issues involved. Because there was sufficient evidence to say cannabis was the only effective treatment for certain conditions, the courts required the government to establish the scheme.
Warren: It’s important to note the Canadian courts could do that because the Canadian Charter of Human Rights is supreme legislation, binding even on the government. We don’t have an equivalent legislation in New Zealand. Nevertheless, that the Canadian courts have taken that view means it is something we ought to at least consider.
MoS: You’ve talked a bit about changing the penalties around low-level and social supply for recreational use. What’s your view on large-scale supply?
Warren: We need to ensure that the present severe response to big supply offences and things like the presumption in favour of imprisonment for heavy drug dealing do not change.
Val: I think it’s worth mentioning that, in terms of Class A drug dealing, there’s a maximum penalty of life imprisonment. So the approach taken currently is very stringent and tough, and we’re not suggesting any change to that.
MoS: A lot of the proposals you have are about diverting people into getting help. Should we be forcing people into treatment?
Warren: No. Forced treatment has been shown to be pretty ineffective generally. However, we do have a whole chapter on whether or not we should retain the Alcoholism and Drug Addiction Act, or some replacement legislation, which allows for compulsory treatment. We’ve done that, firstly, because the Government’s recently announced Methamphetamine Action Plan flagged a review of the Act as a high priority, and it made sense for us to incorporate that within our review.
Secondly, we think it worth considering whether any form of compulsory treatment should be part of the Misuse of Drugs regime so that treatment and supply controls sit side by side rather than being fragmented as they currently are.
Our tentative view is there is some case for having short-term compulsory intervention. Firstly, because people often are not able to make informed choices about treatment until they’ve gone through detoxification.
Secondly, sometimes short-term compulsory treatment for detoxification is necessary to prevent people from harming themselves or others.
MoS: If we shift to a more balanced regime in New Zealand, do we have the facilities and resources available to cope?
Val: A theme that has come through both in the consultations done for our alcohol report and for the Misuse of Drugs Act is that there are significant gaps in treatment services that need to be addressed.
What we suggest in the report is that a blueprint is needed for requirements over the next five years, and we’ve tentatively suggested a Mental Health Commission might be an appropriate agency to report on that. But I think it’s important to say this is an area that has been neglected. Treatment has really been the poor cousin of supply control, and we need to do something to get a better balance between the various limbs of drug policy. And that means we need to invest more resources.
Warren: It’s important people understand this is not something we can achieve overnight. That’s why we’ve suggested the blueprint; because even if we pool all our resources into it at the next budget, we wouldn’t have the community organisations available to use the funding or sufficient personnel with the needed skills.
MoS: Is there a danger that, because of the lack of resources, decision makers will be tempted to opt for the status quo, the blind faith in the criminal justice approach?
Warren: I think there is a danger of that. This area has not been neglected because nobody has recognised the gaps. But solutions have always been too long-term, and they don’t fit within election cycles. We really have to see this as a sustained strategy, and governments need to recognise it’s not something they can deliver results on by the next election. We need to be thinking about five, 10, 15 year time horizons. That’s a very difficult challenge.
MoS: What’s your message to the broader public around this review, and how can they get involved?
Warren: We are inviting submissions to our February paper until 30 April. We’ll then carefully consider all the feedback with a view to producing a final report for Government around about the middle of the year. We’re also keen to meet with interested individuals and groups. Anyone who works in the area or has strong views on these matters is welcome to get in touch.
MoS: How have you found the process of the review?
Warren: Drug policy is intensely interesting but a very difficult and challenging area because drug policy excites people’s emotions and therefore often produces strong emotional public responses in both directions. There are a lot of polarised views so trying to develop a rational set of policy recommendations within that environment is not easy.
We are acutely aware in putting forward policy options that there will be people who read into them things we don’t intend, that will see hidden agendas or will fear that what we’re doing will produce some counter-productive outcome. I think that’s inevitable in a process like this, and that’s why it’s very important we emphasise that nothing so far has been decided.
The Law Commission’s current review of the Misuse of Drugs Act is a rare opportunity for New Zealand to drag its drug laws into the 21st century. Around the world, several other countries have also recently re-examined their drug laws. In this feature, Sanji Gunasekara reviews the global state of drug law reform and finds that, while there is a trend towards more public health-focused legislation, sometimes it is a case of one step forward, two steps back.
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The ‘war on drugs’ has dominated the approach most countries have taken towards illicit drugs ever since the term was first coined by President Nixon in 1969. Restrictive and punitive national drug laws are partly a result of the global framework for drug control, which is prohibitionist in nature. Yet in recent years, several countries have sought to adopt more humane, evidence-based and public-health focused drug law.
So what is behind the growing momentum towards drug law reform?
The hard line approach has not led to a ‘drug-free world’ after all. While the United Nations Office on Drugs and Crime believes global prohibition has contained drug use, its own figures show that between 140 and 250 million people worldwide reported using illicit drugs at least once in the past year. Even if some kind of plateau might have been reached, over the past 40 years, there has been a “massive increase in the scale and diversity of international markets for illegal drugs and increasing rates of drug use in almost every country” according to the International Drug Policy Consortium.
The consequences of a zero tolerance approach to drugs have often been more harmful than the drug use itself, with overly punitive drug laws contributing to serious violations of human rights. According to Navanethem Pillay, UN High Commissioner for Human Rights, “Individuals who use drugs do not forfeit their human rights. Too often, drug users suffer discrimination, are forced to accept treatment, marginalised and often harmed by approaches which over-emphasise criminalisation and punishment while under-emphasising harm reduction and respect for human rights.”
Shifting resources towards prevention, treatment and harm reduction is more effective in reducing drug-related harms than relying solely on the criminal justice system. Such a rebalancing also frees up law enforcement, courts and prisons to focus on more serious crime, including large-scale drug trafficking, while removing barriers for drug users to access treatment. Recent advances in addiction science support the notion that drug use should be viewed through a health and social policy lens instead of a criminal justice one.
Despite growing consensus about the need for drug law reform, there is little agreement on the form this should take. Public debate is often reduced to prohibition versus legalisation. This oversimplification obscures what is actually a continuum between the poles of harshly enforced punitive prohibition at one end and completely unregulated commercial drug markets at the other. Legislative reform aims for a point somewhere in between these extremes.
Until recently, Western Europe was the centre of gravity for drug law reform. Similar reform has also taken place in Canada and in certain states in Australia and the US. Across Latin America, the most innovative legislative changes are taking place, while in some countries, legislative changes have been decidedly retrograde.
Europe
While drug laws still vary widely across the European Union (EU), many states are moving towards a more health-based approach. The European Monitoring Centre for Drugs and Drug Addiction describes a “trend to conceive the illicit use of drugs (including its preparatory acts) as a relatively minor offence, to which it is not adequate to apply sanctions involving deprivation of liberty”.
In practice, this has meant that many EU states have adopted formal or de facto forms of depenalisation – drug use remains a criminal offence but imprisonment is no longer imposed for possession or usage. With specific regards to cannabis, de facto decriminalisation is virtually unanimous across the EU. Only very few countries – Sweden, Latvia and Cyprus – still exercise the option to impose prison sentences for possession of small amounts of cannabis. Legalisation has not been adopted in any EU state.
In 2001, Portugal formally decriminalised the use, possession and acquisition of all types of illicit substances for personal use, which was defined as being up to 10 days’ supply of that substance. The law change ended the use of criminal sanctions for drug possession and introduced a system of referral to the Commissions for the Dissuasion of Drug Addiction, regional panels comprising social workers, legal advisors and medical professionals that aim to dissuade new drug users and encourage dependent drug users into treatment.
The commissions are mandated to use targeted sanctions including community service and fines. These changes did not legalise drug use in Portugal. Possession remains prohibited, and criminal penalties still apply to drug growers, dealers and traffickers. The law change stemmed from the desire to focus police resources on those who profit from the drugs trade while enabling a public health approach to users and occurred during a period of problematic drug use, primarily related to heroin.
After nine years, the impact of decriminalisation in Portugal remains controversial. This is largely because drug use is influenced by many factors in addition to the underlying legislative framework, so attributing any change in the patterns of drug use or harm to the law change alone is difficult.
Nevertheless, some observations are worth noting. Since the law change, cannabis use appears to have increased although levels are still lower than in most other European countries. This may simply reflect an increased willingness to report use. Heroin use appears to have decreased, and there has been a marked drop in drug-related disease and deaths. This has been accompanied by a large increase in the uptake of treatment.
While the Portuguese experience has been described as ‘a resounding success’ by the Cato Institute, the Beckley Foundation concluded that the beneficial impact of the Portuguese initiative has not been as positive as expected. What is clear is that decriminalisation has not heralded a rampant increase in drug use or made Portugal a haven for drug tourism. Overall, drug usage rates in Portugal remain among the lowest in the EU, and drug-related harms have decreased dramatically since the reforms. A major drawback has been the bureaucratic and resource-intensive nature of the system of commissions.
Contrary to widespread belief, drug use remains illegal in the Netherlands. Rather, the Dutch government has adopted de facto decriminalisation. Cannabis remains prohibited, but there is a formal policy of not prosecuting offences that involve a small amount of cannabis for personal use. Retail sale of cannabis is tolerated, providing outlets meet certain criteria such as no advertising, no hard drugs, no underage persons and no sale of large quantities.
Despite open sale at these ‘coffee shops’, levels of cannabis consumption are similar to those of neighbouring countries such as Germany and Belgium and much lower than in the UK, France or Spain. The Dutch approach also appears to have been particularly successful in separating the market for cannabis from those for other more harmful substances. But critics have accused the Netherlands of undermining global efforts against drug control, and in recent years, the Netherlands has progressively tightened its approach. New restrictions have been introduced, and the number of ‘coffee shops’ had declined from about 1,500 in 2000 to 702 in 2007.
A major drawback to the Dutch approach relates to the ‘back-door problem’ – while the sale of cannabis to users is tolerated, supply to the retailer is subject to law enforcement, and suppliers can still be prosecuted for transporting cannabis to the shops.
Criminal organisations have taken over a large part of the cannabis industry. According to police, at least 80 percent of what is grown in the Netherlands is exported. Various initiatives to address this, such as allowing cannabis cultivation for ‘coffee shops’ within a closed system and hence decriminalising its production, have so far failed.
United States
While the US is the cradle of drug prohibition, there is a remarkable diversity of drug law at state and county level. Currently, 13 states have decriminalised the use or possession of cannabis and 13 states have recognised its medicinal use. Some states fall into both categories. Nevertheless, US law enforcement and prison systems are overwhelmed by prosecutions on drug-consumption charges.
In a sign that the federal position is slowly changing, the Obama administration has signalled its intent to deal with drugs as a matter of public health rather than criminal justice alone, with treatment’s role growing relative to incarceration. Federal authorities have been instructed to end raids on medicinal-marijuana dispensaries, and the ban on federal funding of needle exchange programmes has been lifted.
In a tacit admission that hard line anti-drug policies in the broader region have not worked, the US House of Representatives has voted to create an independent commission to review its anti-drug policies related to Latin America. Since 1980, the US has spent nearly $14 billion trying to stop drugsmuggling from Latin America yet there are still over 25 million users of marijuana, 5.3 million users of cocaine and nearly half a million users of heroin in the US.
Despite differences across counties and cities, the state of California comes closest to the de facto legalisation of cannabis anywhere in the world. Cannabis is now available as a medicinal treatment in California to almost anyone who tells a willing physician they would feel less discomfort if they smoked it. There are over 200,000 Californians with a medical letter from a doctor entitling them to purchase cannabis and hundreds of dispensaries selling it. Cannabis sold for medical purposes represents only a small fraction of the total California cannabis market but diversion to this wider market clearly occurs. The wholesale price of cannabis has fallen by half since the legalisation of medicinal marijuana.
Latin America
No region has had greater incentive to reform its drug laws than Latin America. The continent has borne a heavy cost in the war on drugs. Thousands of lives have been lost, drug lords have taken over entire cities and corruption is undermining governance. Despite billions of dollars spent in supply eradication, the region remains the world’s largest exporter of cocaine and marijuana, and domestic drug use is also growing.
Recognising the need for a new approach, the Latin American Commission on Drugs and Democracy, convened by the former presidents of Brazil, Colombia and Mexico, has proposed a paradigm shift away from a prohibitionist strategy to one that embraces treatment and prevention at its core. In a report released in 2009, the commission calls for the status of addicts to change from that of drug buyers in the illegal market to that of patients cared for in the public health system. It also argues that it is essential to differentiate between illicit substances according to the harms they inflict and emphasises the need for better strategies to reduce demand.
Drug law reform across Latin America was well underway even before the commission’s clarion call for change. In August 2005, Argentina’s supreme court ruled that it was unconstitutional to impose criminal sanctions for the personal possession of drugs, paving the way for new legislation to decriminalise the possession of illicit drugs for
personal use. In Brazil, legislative changes early last decade led to the partial decriminalisation of possession for personal use, with diversion into treatment and community service instead.
Some of the most far-reaching legislative reform is occurring in Ecuador, a country long known for having one of the toughest anti-drug regimes in the region. In an attempt to address the issue of proportionality and solve a prison crisis, in 2008, Ecuador pardoned more than 2,000 drug ‘mules’ who met three criteria – they were first-time offenders, had been caught with a maximum of two kilograms of any drug and had completed 10 percent of their prison sentence or a minimum of one year. New legislative proposals will have to consider the judicial precedent of this bold move.
Not all drug reform across the continent is progressing in the same direction. While Colombia’s Constitutional Court declared in 1994 that the possession of illegal drugs within fixed limits was not subject to prosecution, the hard-line government of President Uribe believes this is inconsistent with efforts to curtail drug trafficking and has been trying to undo that decision with a constitutional amendment to recriminalise consumption.
Other apparently progressive drug law reform has been double-edged. In Mexico, new legislation was enacted in August 2009 that decriminalised possession of small quantities of all drugs and mandated increased prevention and treatment programmes. Despite many positive aspects, there are real concerns that the new law may end up sending even more people to jail. It sets a very low threshold in differentiating between a consumer and a seller and applies even harsher penalties for small-scale dealing. While cocaine is sold by the gram on the street, the maximum amount deemed for personal use is half a gram. Possession of more than this is punishable by three or more years in prison.
The new law is likely to create additional incentives for police corruption and the extortion of consumers and small-time dealers. Whatever action Mexico takes is unlikely to have a major impact on the violence without a major reduction in demand from across the border in the US.
Indonesia
Many drug users in Indonesia experience abuse and extortion at the hands of police during regular ‘crackdowns’. In September 2009, Indonesia passed a new narcotics Bill. Contrary to what drug reform groups such as the Indonesian Coalition for Drug Policy Reform were hoping, the new law maintains the death penalty for some drug offences, continues to criminalise drug addiction and makes it a crime for parents to fail to report their addicted children to authorities. The law also transfers responsibility for fighting drug trafficking from the government to civil society.
Nevertheless, the new Bill does introduce some positive measures. For example, public health concerns are addressed through the requirement to provide medical and social rehabilitation for drug addicts.
Conclusion
Many countries have grappled with drug law reform. Today, we have a much better understanding of what works and what does not. As New Zealand reviews its 35-year-old drug law, there is much to be learned from overseas. While there is no simple one-size-fits-all solution, it is clear that overly punitive approaches to drug use have failed elsewhere. Alternative approaches to drug law need to be guided by evidence, grounded in public health principles and must firmly embrace human rights.
A drug-free world might not be possible but a world free of the harms from the war on drugs ought to be.
References
Barrett D, Nowak M.(August, 25 2009) The United Nations and Drug Policy: Towards a Human Rights-Based Approach. Aristotle Constantinides and Nikos Zaikos, eds., Brill/Martinus Nijhoff.
Blickman T, Jelsma M. (2009) Drug policy reform in practice. Experiences with alternatives in Europe and the US. Transnational Institute.
Greenwald G. (2009) Drug decriminalization in Portugal. Lessons for creating fair and successful drug policies. Cato Institute.
Human Rights Watch. (November 2009) Drugs, punitive laws, policies, and policing practices, and HIV/AIDS.
Hughes C, Stevens A. (December 2007) The effects of decriminalization of drug use in Portugal. Briefing paper 14. The Beckley Foundation Drug Policy Programme.
Jelsma M, (October 2009) Legislative innovation in drug policy. Latin American Initiative on Drugs and Democracy. Transnational Institute.
Latin American Commission on Drugs and Democracy. (2009) Drugs and Democracy: towards a paradigm shift. February
Rolles S. (2009) After the war on drugs: blueprint for regulation. Transform Drug Policy Foundation.
Tinajero JH, Angles CZ. (October 2009) Mexico: the law against small-scale drug dealing. Series on Legislative Reform of Drug Policies Nr 3. Transnational Institute.
Law on Narcotics No. 35 / (20 October 2009). A review by the Secretariat of the National AIDS Commission. Republic of Indonesia.
In the late 1990s, there was an increasing push within Australia to decriminalise cannabis and to provide legal access to heroin for those dependent on it. Political circumstances did not permit this, but Australia did adopt an Illicit Drug Diversion Initiative (IDDI), a national agreement to divert illicit drug users away from the police and courts. This has enabled a vast expansion of diversionary opportunities for illicit drug users in Australia. Caitlin Hughes looks at the nature of Australia’s diversion programme and its impacts to date.
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Australia takes a multi-faceted approach to drugs, involving reduction of both supply and demand, with the overall aim being to minimise the harms of drug use to individuals and society. One policy intervention that has increased in prominence in recent years is the diversion of illicit drug users. Diversion involves providing alternate responses to divert an offender out of the criminal justice system or into education and treatment.
While diversion had been mainstream police practice for many years, pre-1999 implementation largely rested on informal mechanisms such as police discretion to not charge an offender and/or ad hoc formal programmes within Australia’s eight states and territories. A significant shift occurred following the adoption of the Illicit Drug Diversion Initiative (IDDI) on 9 April 1999. The IDDI was a formal agreement by the Commonwealth, states and territories to divert minor drug users via police and courts into education and/or treatment. Critical to enabling the expansion of treatment places, it received federal funding (amounting to date to over $490 million).
Somewhat contradictory is that the IDDI funding came through the Coalition Government’s recently adopted National Illicit Drug Strategy ‘Tough on Drugs’. In essence, three factors were integral to the reform: an evidence base on diversion programmes; law enforcement support; and overcoming the political perception that drug diversion was a ‘soft’ reform. The latter was achieved through rhetoric that diversion was ‘tough on drugs’. For example, it did not alter the criminal law and it remained tough on traffickers and offenders who failed to take up diversion. In spite of the rhetoric, the IDDI is essentially a pragmatic and evidence-informed response, one that has received widespread acclaim.
Between 2000 and 2007, 35 new diversion programmes were adopted in Australia, 30 of which were funded by the IDDI. As a consequence, by late 2007, there were 52 diversion programmes operating for drug and drug-related offenders in Australia, with between three and 12 programmes in each state or territory.
The diversion programmes provided across Australia can be categorised into five different types, the characteristics of which are summarised below.
Police diversion for cannabis only: aimed at offenders detected using or possessing 15–100 grams of cannabis. A number of different responses are provided, including cannabis cautioning and cannabis expiation. The former involves a more one-off, therapeutic approach – a formal caution, provision of educational information and optional referral to an education session or telephone service. The latter provides offenders with multiple opportunities to avoid a criminal record through the payment of an expiation fee of $100–300.
Police diversion for other illicit drugs: aimed at offenders using or in possession of between 0.5 grams and 2 grams of amphetamines, cocaine, ecstasy or heroin. Offenders are required to undertake an assessment of their drug use and attend education or counselling sessions.
Police diversion for youth or other drug-related offenders: aimed predominantly at offenders aged 10–18. This approach results in non-therapeutic sanctions including a warning or the requirement to attend a family group conference.
Court diversion for minor drug/ drug-related offenders: aimed at minor offenders with a recognisable drug (predominantly illicit) problem. Most programmes are pre-plea and require that an offender undergo assessment and be deemed as having a treatable drug problem. Eligible offenders then receive tailored drug treatment (predominantly counselling) for a period of 3–4 months while on bail.
Court diversion for serious drug/drug-related offenders: aimed at drugdependent offenders whose offending is directly related to their drug use. Intensive case management, supervision, urine testing and drug treatment for 6–24 months are required. Programmes generally operate pre-sentencing and offer offenders a final chance to avoid imprisonment.
There is variability between the programme designs, which reflects the federal nature of Australia, but with three exceptions, these five programme types operate in all states and territories. The provision of five types of programme reflects best practice principles concerning diversion. Core principles include the need for a broad range of diversion programmes with different levels of interventions, access for all offenders regardless of age, gender, ethnicity or substance of use and careful targeting using clear eligibility criteria.
The critical question is do the programmes work? There are a number of challenges to answering this question, the first of which is differing definitions for ‘work’. Diversion programmes have a variety of goals, for example, reducing the harms from receiving a criminal penalty, reducing offending and increasing access to drug assessment and treatment. Diversion programmes differ in their ability to attain such goals, largely due to their chosen mechanism and target population. For example, the less intensive programmes appear better at reducing demands on police and more intensive programmes appear better at reducing drug use and related problems. Programme outcomes, even among similar programmes, are also often not directly comparable due to population difference.
That said, it has been shown that diversion programmes have had numerous benefits.
Firstly, they have reduced demands on the criminal justice system. For example, the evaluators of the NSW Cannabis Cautioning Programme calculated that the scheme saved 6,000 police hours in each year of operation. This is because fewer offenders were sent to court, and compared to a traditional criminal charge, cannabis cautioning produced a saving of 1.5 hours per officer at the point of arrest and seven hours in cases where an offender would have had to go to court.
Diversion programmes have also reduced offending and the likelihood of imprisonment from reoffending. A national review of 12 police diversion programmes in Australia found the majority of offenders did not reoffend following diversion. Moreover, in spite of marked differences in offending between jurisdictions, the proportionate decrease in offending after diversion was relatively consistent across all jurisdictions, with 69–86 percent of offenders without prior records and 31–54 percent of offenders with prior records not reoffending within 18 months. Even among offenders with prior records – a proven predictor of reoffending – most committed either less or similar levels of offending.
A third benefit has been reduced drug use, frequency of drug use and/or harmful use. For example, the proportion of offenders who self-reported as regular cannabis users decreased from 95 to 74 percent before and after undertaking the Queensland Police Drug Diversion Programme, and participants in the Western Australian Pre-sentence Opportunity Programme also reported significant reductions in self-reported drug use.
Fourthly, the programmes have improved physical health, mental health and relationships. For example, evaluators of the NSW MERIT programme found significant improvements in relation to HIV risk-taking behaviour, poly-drug use behaviour, psychological wellbeing and elements of physical health. They also found improvements (though not
significant) in relation to social functioning.
Lastly, the programmes have increased the cost-effectiveness of responses. For example, studies of the NSW Magistrates Early Referral Into Treatment court diversion programme revealed that drug diversion offered savings equivalent to $2.98 for every $1 invested. This was attributed to reductions in the costs of police investigation, hospitalisations, criminal activity and prison and probation supervision costs.
Studies have also shown that diversion programmes can have counter-productive impacts. A particular concern is the issue of net-widening, whereby the likelihood of receiving formal criminal justice contact is increased following the introduction of diversion programmes. As shown in the South Australian Cannabis Expiation Notice Scheme, net-widening can occur because diversion is faster for police to implement. It can also occur due to the belief that diversion will be beneficial for offenders.
In recent years, there have been two important learnings. First, the likelihood of positive or negative impacts appears shaped by individual programme design, for example, the choice of eligibility criteria. Second, the effectiveness of diversion programmes is shaped by the broader diversionary and criminal justice system design. Good design can be facilitated by careful choice and early evaluation of diversion programmes and considering how the programmes operate together. It also helps to identify potential linkages or referral points between the programmes and reduce potential conflicts and gaps for specific types of offenders, for example, indigenous people.
The Australian Illicit Drug Diversion Initiative demonstrates there are alternatives to drug law reform that have the potential to address drug-related offending. The choice and design of programmes needs to suit local circumstances and goals, but with appropriate design, diversion programmes can offer a very useful and politically palatable way of increasing opportunities to reduce drug use, drug offending and criminal justice costs. At the same time, they provide more humane responses to illicit drug offending.
References
ADCA (1996). Best practice in the diversion of alcohol and other drug offenders: Proceedings of the ADCA diversion forum. Canberra: Alcohol and other Drugs Council of Australia.
Baker, J., & Goh, D. (2004). The cannabis cautioning scheme three years on: An implementation and outcome evaluation. Sydney: New South Wales Bureau of Crime Statistics and Research.
Bull, M. (2003). Just treatment: a review of international programs for the diversion of drug related offenders from the criminal justice system. Brisbane: School of Justice Studies, QUT.
Bull, M. (2005). A comparative review of best practice guidelines for the diversion of drug related offenders. International Journal of Drug Policy, 16, 223-234.
Christie, P., & Ali, R. (2000). Offences under the cannabis expiation notice scheme in South Australia. Drug and Alcohol Review, 19(3), 251-256.
Crime Research Centre (2007). WA diversion program – Evaluation framework (POP/STIR/IDP). Final report for the Drug and Alcohol Office. Perth: Crime Research Centre, University of Western Australia.
Health Outcomes International Pty Ltd and Turning Point Alcohol and Drug Centre (2004). Evaluation of Queensland Illicit Drug Diversion Initiative (QIDDI) Police Diversion Program (Final Report). Kent Town, SA: Health Outcomes International Pty Ltd.
Howard, J. (1999). Media release: Tough on Drugs Diversion Programme. Canberra: Office of the Prime Minister.
Howard, J. (2002). Media release: Illicit Drug Diversion Initiative. Canberra: Office of the Prime Minister.
Hughes, C., & Ritter, A. (2008). Monograph No. 16: A summary of diversion programs for drug and drug-related offenders in Australia. Sydney: National Drug and Alcohol Research Centre.
Hughes, C. E. (2009). Capitalising upon political opportunities to reform drug policy: A case study into the development of the Australian “Tough on Drugs-Illicit Drug Diversion Initiative”. International Journal of Drug Policy. 20(5), 431-437.
MCDS (2004). The National Drug Strategy: Australia's Integrated Framework 2004-2009. Canberra: Ministerial Council on Drug Strategy.
Morrison, S., & Burdon, M. (2000). The role of police in the diversion of minor alcohol and drug-related offenders (National Campaign Against Drug Abuse Monograph Series: Monograph no. 40). Canberra: Department of Health and Aged Care.
Northern Rivers University Department of Rural Health (2003). Evaluation of the Lismore MERIT Pilot Program Final Report. Lismore: NSW Attorney General's Department.
Payne, J. (2006). Specialty courts: current issues and future prospects. Trends and Issues in Crime and Criminal Justice (317).
Payne, J., Kwiatkowski, M., & Wundersitz, J. (2008). Police drug diversion: a study of criminal offending outcomes (Research and public policy series, no. 97). Canberra: Australian Institute of Criminology.
Pyne, C. (2007). Media release: $165 million for Drug Diversion Initiative.
Roberts, L., & Indermaur, D. (2006). Timely intervention or trapping minnows? The potential for a range of net-widening effects in Australian drug diversion initiatives. Psychiatry, Psychology & Law, 13(2), 220-231.
Wundersitz, J. (2007). Criminal justice responses to drug and drug-related offending: are they working? (Technical and Background Paper No. 25). Canberra: Australian Institite of Criminology.
Last year, the Ministry of Health published a report on research into New Zealanders’ knowledge about and attitudes to illegal drugs. Sara McFall presents a brief summary of the report’s findings.
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The Research report on knowledge of and attitudes to illegal drugs reveals a mixture of predictable, surprising and encouraging findings: there were high levels of concern about methamphetamine, low awareness of the risks of drugged driving and a heartening belief that drug problems are a community issue and not the responsibility of individuals.
The research sought to understand how New Zealanders viewed illegal drugs, the reasons why people used drugs and perceptions about the risks and harms associated with their use. The research was carried out by consultancy firms Acqumen Ltd and UMR Research Ltd as part of the Ministry of Health-led demand reduction programme for illegal drugs. The programme was created in response to calls for accurate and reliable information about drugs and their associated harms, and it aims to improve public awareness of and access to sources of information and help.
The research reflects the views of those with experience of drug use (past or present) and those who had never used drugs. A telephone survey was conducted with 750 members of the general public, and qualitative research, both in-depth interviews and focus groups, was carried out with members of the general public (who may or may not have used drugs) as well as people recruited primarily through treatment services. Interviews were carried out with Mäori, Pacific and Päkehä, youth (aged 13–17), people aged between 18 and 35 and parents in Christchurch, Napier/Hastings, Wellington and Auckland.
There was a general concern among the public about drug use, about increasing prevalence and problems including crime and violence. People did not associate drug use with any particular class or ethnicity, and in the case of cannabis, many considered it to be an accepted part of society.
There were a number of reasons given why people used illegal drugs, including for perceived benefits such as stress relief and relaxation, as part of social life, experimentation, peer pressure, for creative reasons and to increase confidence. Past and present drug users talked about trying drugs at a young age, often because it was part of the family environment. And for some, drug production and supply was part of the local economy. At least half of those interviewed had been introduced to drugs by a family member.
“It’s a norm when the bong is still on the table when you get up for school in the morning.”
For older people with experience of drug use, the most common reason for starting was to cope with personal problems including past traumatic events.
People were aware of the illegal status of drugs but did not consider this to be a deterrent or think that police would do anything about possession offences. For those with experience of drug use, the illegal status was not seen as a deterrent but some thought it was a potential deterrent for seeking help.
Past and current drug users talked of the harms associated with drug use in terms of physical and mental health problems, loss of self-esteem, loss of wairua, losing their children and long-term impacts on employment opportunities.When members of the general public discussed the impacts and harms associated with drugs, these included death, physical and psychological problems, failed potential in employment and education, and harm to personal relationships.
A differentiation was made between occasional use and problematic use, and some thought there were those with a predisposition to dependence. However, the view of those with experience of drug use was that addiction was a risk for all drug users.
“Don’t matter who you are, addiction has no boundaries. If you take something for too long, you [will] become dependent on it.”
Methamphetamine
For the great majority of people, methamphetamine was perceived as by far and away the most harmful drug and was associated with violence, gangs and serious physical and mental health problems. There were several comments about brain damage and the addictiveness of methamphetamine and a general fear of it from members of the public.
“I think P, you only have to take it once and you’re addicted, that’s what I’ve heard.”
“P makes you kill people, that’s obvious. You read it in the paper all the time.”
“My mum told me that like every time you do [methamphetamine] you lose heaps of brain cells and you can never get them back.”
Others put the attention on methamphetamine into perspective.
“It was interesting because I was thinking that, in the 60s, the scourge of New Zealand was LSD, in the 70s the scourge of New Zealand was cannabis, in the 80s and early 90s, the scourge was ecstasy, now we’ve got methamphetamine. All these drugs have been around and available for more than 50 years.”
“If you put it into perspective, the drug that does by far and away the most harm in society is alcohol. And yet we allow it to be marketed and sold at the supermarket, it is readily available, it is made glamorous… ”
Past and present drug users considered methamphetamine to be a high-risk drug with serious effects on health. Some found it gave them confidence but most talked of the harms to them and their family.
“I taught myself to make P at my house and the smell was so bad. I knew it was really dangerous but kept at it. I had my son living with me at the time and he was nearby. Unbelievable now.”
Cannabis
One of the interesting findings from interviews with the public was the attitudes towards cannabis. Cannabis was seen as very prevalent and easily available in the community including at schools. It was considered safer than other illegal drugs (and for some people, safer than alcohol), and there were a number of comments about it being OK to smoke and drive.
“As far as I have seen, the side-effects of marijuana can be relatively harmless. They get very, very hungry afterwards and the only negative side-effect of that, I suppose, is they lighten their wallet on crispy chicken or something.”
“No hangovers, you can drive, no mess, you don’t have bottles, you don’t have people lying all over the floor, spillage everywhere.”
There was concern at what was perceived as the increasingly young age of cannabis users, and some discussed the potential mental health problems associated with cannabis. Interviews showed past or current drug users considered most of the harms associated with cannabis were to the individual whereas alcohol and methamphetamine were associated with greater societal harms. Cannabis was not, however, considered harmless and was linked with memory loss, social isolation and depression.There was some discussion of cannabis as a ‘gateway’ drug:
“Cannabis… trains your brain to be addictive.”
“Cannabis tends to make people stupid… I was never interested in it so maybe it was my gateway… in that I went on to the next thing.”
Help and support
Most people thought there was a need to raise awareness of the harms of illegal drugs. This should be done in ways that balance the reporting of serious criminal activities in the news with the personal, social and particularly family impacts of drug misuse.
“Society needs to be more real about drugs and acknowledge how common they are. You can’t hide it as it just makes people feel even worse.”
A further goal would be to reduce stigma against people with drug dependence and to promote supportive environments that make it easier to seek help and make changes. For those who had experience of drug use, some thought the media responsible for the stigmatisation of drugs users.
“We don’t need to be judged as addicts. We already know we’ve destroyed our lives and don’t need to hear it again.”
Interestingly, the quantitative and qualitative research with the general public found that the majority considered drug problems were community problems, which required a response from society as a whole, rather than a personal responsibility. The qualitative research found that most people demonstrated care and support for those with drug-related problems recognising they were often caused by significant past events or other problems.
The general public wanted a public education campaign about drugs and the promotion of sources of help such as the helpline. In particular, people called for more information for parents. Many also thought it would be valuable for people in recovery from drug problems to tell their stories.
When past and present drug users were asked whether they would have wanted help and treatment earlier, some said they weren’t ready as they were still having fun or needed the escape drugs provided. Others called for better access to treatment and practical interventions.
“I would have liked help earlier on and gave up [in my home town] and came [here] because I was told there was going to be less of a waiting list. I then spent close to a year waiting to get in the door. So after two years of trying to get into CADS, I was pretty sure that not only would they have all the answers [but that] there would be oompa loompas and chocolate rivers once I got inside that building.”
“One thing CADS could do is have a team of people on the phone… saying ‘Look, I know we can’t fit you in for an interview for a couple of months but every couple of weeks, I’m going to give you a call to see how you are going.’”
DrugHelp
A step towards addressing some of the calls for information about drugs and where to get help is a new web resource funded by the Ministry of Health and developed by a consortium of providers led by the New Zealand Drug Foundation. DrugHelp will provide reliable and objective information about drugs, share stories with people affected by drugs and provide self-help tools and access to further help and support. DrugHelp will be launched in May.
A selection of recent media coverage and commentary on the Law Commission's MODA review.
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Ross Bell: Why sensible suggestions on drug law should not be ignored
Dominion Post
3 March
The Government's initial response to the Law Commission's report on drug law reform is disappointing. Justice Minister Simon Power's declaration that there's not a single, solitary chance he will be relaxing drug laws is symptomatic of the misinformation swirling around this socially divisive issue and the way in which a complex debate is framed in over-simplistic terms, or worse, shut down altogether.
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Brian Rudman: Power chains us to dead-end drug laws
NZ Herald
17 Feb
Law reform is "the art of the possible" said the Law Commissioners, in explaining why they'd left themselves open to charges of being illogical and hypocritical in excluding alcohol and tobacco from their new review of recreational drugs laws.
Given the hysterical response from Justice Minister Simon Power to their 408-page, three-year long study, Sir Geoffrey Palmer and his fellow commissioners must be wondering if anything is possible under Mr Power.
Read full: http://www.nzherald.co.nz/opinion/news/article.cfm?c_id=466&objectid=10626584&pnum=0
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Closed minds on cannabis reform
Nelson Mail
15 Feb
Under the leadership of former prime minister Sir Geoffrey Palmer, the Law Commission is both busy and productive, intent on making New Zealanders look closely at many of our laws with a view to modernising, simplifying and improving them.
Its latest report, an issues paper on controlling and regulating drugs, out last week, has a focus on the potential softening of drug possession laws with a complementary shift towards more treatment of chronic users.
These are ideas that merit study and debate. But Justice Minister Simon Power isn't prepared to even wait for the submission period to end before declaring his closed mind.
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Case for drug law reform is serious
Dominion Post
15 Feb
The Government's quick dismissal of the bulk of the Law Commission's work on drug use in New Zealand is regrettable.
Its unpalatability for the Government – and, no doubt, for many others – comes in its recommendation for flexibility when dealing with small-scale dealing and personal possession for use, and for less emphasis on conviction and punishment. The flip side of that is a recommendation for a greater focus on treatment, prevention and education.
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Bring debate on drug use into the open
NZ Herald
13 Feb
Justice Minister Simon Power is not shy of dismissing recommendations out of hand, no matter their source.
Last year, he summarily rejected the concept of "executive amnesties", which was advanced by the Chief Justice, Dame Sian Elias, as a means of reducing prison overcrowding. This week, he was at it again, instantly banishing to Coventry a Law Commission report that called for a softening of the drug laws relating to personal use.
Read full: http://www.nzherald.co.nz/opinion/news/article.cfm?c_id=466&objectid=10625887
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Minister of Justice rejects more liberal drug laws
Radio NZ Morning Report
12 Feb
The Minister of Justice has poured cold water on a Law Commission report seeking reform of the Drugs Act. Interview with Drug Foundation's Executive Director Ross Bell.
Opens audio - http://www.radionz.co.nz/audio/national/mnr/2010/02/12/minister_of_justice_rejects_more_liberal_drug_laws
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Blogroll
Produced by the New Zealand Drug Foundation to assist people and organisations to make submissions to the Law Commission.
Download the toolkit in full [PDF]
Feel free to contact us if you have any further questions or concerns. The main contact is Catherine Milburn (catherine.milburn@drugfoundation.org.nz or 04 801 6303).
This toolkit, produced by the New Zealand Drug Foundation, will help people to have their say on the Law Commission’s Misuse of Drugs Act Review issues paper – Controlling and Regulating Drugs.
It provides a summary of the key options outlined by the Law Commission, and also signals the Drug Foundation’s preferences. Where the Drug Foundation states its views we make that clear to you – you don’t have to agree with our preferences – you should form your own view.
This toolkit should be read in conjunction with the Law Commission’s summary paper and also specific chapters of the full 400-page issues paper.
The structure of this toolkit follows the structure of the issues paper and summary document. For most of the questions asked in the summary document we provide comment and state our preferences.
The first 7 chapters of the issues paper (part 1) provide context and background. No specific questions have been asked. But they are still useful chapters to read if you have time. Our toolkit provides a summary.
The rest of the issues paper, chapters 8-16 (part 2), is where the important stuff is. It’s in these chapters where the Law Commission outline options for changing the law, and where they ask specific questions. Our toolkit provides more detail on each of those chapters – we also outline the Drug Foundation’s point-of-view.
In 2008 the Government called for a first principles review of the Act. The Law Commission were charged with the task of examining both the legislation and context in which illegal drugs exist in New Zealand.
The Law Commission has completed two years of considered analysis which included them talking with drug policy and treatment experts in New Zealand and around the world.
The substantive issues paper ‘Controlling and Regulating Drugs’, released in February 2010 outlines a range of options for how New Zealand’s drug law can be updated.
It has been 35 years since the enactment of the Misuse of Drugs Act. It was first developed at a time when our understanding of good drug policy was in its infancy and patterns of drug use were very different from today. The Law Commission says of the Act that it “no longer provides a coherent and effective legislative framework for responding to the misuse of psychoactive drugs… The Act is now outdated and does not reflect current knowledge and understanding about drug use and related health, social and economic harms.”
This is an important, once-in-a-lifetime opportunity to get informed and make your mark on the future direction of New Zealand’s drug law.
The review is open to anyone and everyone. We encourage you to read the issues paper and/or summary document to express opinions about some of the key and serious issues in the Act.
Write a submission
Submissions are a powerful and effective way to have your voice heard.
A submission is the presentation of your views or opinions to the Law Commission on matters under consideration in the review. By writing a submission, you are providing the Law Commission with your own insights, observations and opinions. Your submission will contribute towards shaping the Law Commission’s final recommendations to Parliament.
However it is essential to be informed. You need to know your issue. Research it to develop your recommendations you believe should be taken. This will help give validity to your submission. Submissions need to be clear, ordered to the point, factual and constructive.
You should read the issues paper or at least the summary, know what’s in it and what it’s about. You can access a copy here.
Submissions are open to anyone and everyone. Young people, retired people, experts, people who use drugs, concerned others, parents, communities, schools, organisations, academics and more all have a chance to be heard. All public submissions to the Law Commission are given equal respect.
Submissions can be written or submitted online via email through the ‘submission filed’ link on the TalkDrugs page. No oral submissions are accepted during this process.
Send in a written submission to:
Drugs Review Project Coordinator
Drugs Review Submissions
Law Commission
PO Box 2590
Wellington 6140
Your submission does not have to cover everything in the issues paper. You can focus on a particular aspect or aspects, or make a general statement. However make sure it stays within the realms of the issues paper. The content needs to be easy to understand, however does not need to be lengthy nor academic.
There is no provided submission form however we recommend using the questions outlined in the summary report for guidance.
Visit the online consultation website
The Law Commission has created an online consultation website: www.talklaw.co.nz to generate wider public discussion on the issues. The website is a useful resource to help stimulate debate that can contribute to a considered submission. Users can take part in forum discussions, participate in online surveys and send in an online submission. This may suit users who wish to participate in the debate but remain anonymous.
Talk to the Law Commission
The Law Commission is keen to meet interested individuals and groups during the consultation period. Anyone who works in the area or has strong views on these matters is welcome to get in touch. Contact the Law Commission for more information at: drugsreview@lawcom.govt.nz.
Spread the word and keep informed
Many of us are impacted by drug harm in some way, so each of us should get involved in this review. Use every opportunity, whether at work or with friends, to discuss the review.
We have dedicated a section on our website to the Review of the Act, Getting the MODA running: www.drugfoundation.org.nz/moda.
Keep updated with the media and blogs (we have a running list on our website): www.drugfoundation.org.nz/moda/media-coverage.
Our latest Matters of Substance magazine provides some interesting and useful reading around drug laws. Email us to get your free copy.
Visit our YouTube channel (www.youtube.com/nzdrugfoundation) for a range of videos on drug policy and law reform, especially from our 2009 International Drug Policy Symposium.
Submissions close 30 April 2010.
After 30 April 2010, the Law Commission will consider the views outlined in the submissions and any further research that has come to hand before developing final recommendations for the Government about how New Zealand’s drugs laws could be improved. These recommendations will be discussed in the final report which will be presented to Government to consider later this year. The Government will then decide what to do with the Commission’s recommendations.
The following is a concise overview of the first seven chapters of the Law Commission’s issues paper ‘Controlling and Regulating Drugs’. The Law Commission doesn’t ask specific questions in these chapters, but you are still able to provide your own comment on them.
Chapter 1: Introduction
Along with the Preface, chapter 1 provides context to the review and outlines the Commission’s perspective on the nature and extent of drug use in New Zealand.
Chapter 2: The harms arising from drug use
This chapter looks at drug harm and ways to measure harm. It provides a detailed examination of the harm to New Zealand from cannabis and methamphetamine.
Chapter 3: Drug policy
The basis of New Zealand’s current drug policy, harm minimisation, is explored. The polarising debate surrounding that terminology is briefly discussed. The need for a more balanced approach is highlighted; and the ‘three pillars of supply control, demand reduction and problem limitation’ are considered.
Chapter 4: The history and development of drug regulation
This chapter charts the development of drug law in New Zealand, including an overview of the last review of our drug law in 1973, Drug Dependency and Drug Abuse in New Zealand. The Commission make an important observation that that review – the Blake-Palmer Committee 1973 – strongly recommended greater emphasis on treatment and education.
Chapter 5: Current approach to drug regulation
The current regulatory schemes used to control psychoactive substances are explored, including how the law must ensure adequate supplies of medicines. The relationship between the Medicines Act and the Misuse of Drugs Act is described, highlighting the obvious need to clarify the requirements in law surrounding control of - and legitimate access to - psychoactive drugs.
Chapter 6: New Zealand’s international obligations
This is an important chapter. The Law Commission provide an extremely comprehensive analysis of New Zealand’s obligations under the three international drug control treaties. They conclude the treaties provide for greater flexibility than our current law allows for dealing with lower level offending.
Chapter 7: Models of drug regulation
The Law Commission discusses the full range of drug control models, from strict prohibition through to legalisation. For each model the rationale, cost and benefits and examples in practice are explored, in many cases considering the model’s applicability within a New Zealand context.
The Law Commission outline their approach to the review, where they separate substances currently controlled by international drug conventions (“convention drugs”) and those new substances that aren’t (“non-convention drugs” e.g. BZP and other so-called ‘legal highs’).
For “non-convention drugs” the Law Commission proposes a new framework of regulations over new substances coming onto the market. Their proposals provide a much stronger level of control than we currently have. Many will remember the weakness of the system when BZP hit the market with no controls at all, and it was left to the Government to demonstrate whether the substance was safe or not.
Yes. The Drug Foundation agrees with the Law Commission that a model of legalisation with regulatory restrictions should be the starting point for regulating drugs not covered by the conventions. Full prohibition should be the last resort when regulatory restrictions prove ineffective or the harm of a drug outweighs the harm of prohibited substances. There is no obligation to prohibit psychoactive substances that are not covered by the conventions. We argue that regulations over new psychoactive substances allow for greater control than an outright ban, where specific policy responses can be tailored to the new substance (e.g. age restrictions).
The Drug Foundation believes that a lesson should be learned from the BZP situation, and that the processes by which such products are introduced and regulated should be fully examined. Such a system needs to recognise that as fast as one substance is banned, another ‘designer drug’ will be introduced.
Yes. The Drug Foundation agrees with the Law Commission, that any regulatory regime for new recreational psychoactive substances require approval before they can be manufactured, imported or distributed in New Zealand. We also support the Law Commission’s suggestion that, as part of the approval process, the importer or manufacturer of such substance should be required to provide the regulatory body all available information about the composition of the substance and its known health effects so that appropriate controls can be put in place. We further agree that if a substance is not approved, the regulatory body should refer the substance to the agency responsible for prohibited drugs.
This process is fundamental for any regulatory regime to ensure research into the harms of new psychoactive substances is carried out before they enter the market, not several years after their introduction.
Yes. The Drug Foundation agrees with the Law Commission that it is better for all new psychoactive substances, other than food or medicine, to automatically fall into a new regulatory regime. This would ensure that the risks associated with the recreational use of all substances are assessed by a regulatory body on a substance by substance basis; and that appropriate controls are put in place before it becomes available for sale.
Yes. The Drug Foundation agrees with the Law Commission, that there are some regulatory requirements that should apply to all recreational psychoactive substances, if they are approved. These generic conditions should be included in primary legislation. We agree with the Law Commission on the main minimum standards and have added some more of our own:
Age restrictions: A statutory minimum age of 20 should apply to the sale and supply of all recreational psychoactive substances.
Advertising/promotional restrictions: The Act should contain similar restrictions to those found in the Smoke-free Environments Act. The restrictions should also include a prohibition on advertising on the internet.
Places of sale restrictions: The restrictions currently in the Misuse of Drugs (Restricted Substances) regulations should be included in legislation - this includes keeping their sale separate to alcohol. However the sale of recreational psychoactive substances should be prohibited at petrol stations as alcohol is. This also should apply to pharmacies, non-fixed premises such as vehicles, tents and mobile street cars, and places where children gather. There should be no free of charge supply or the offering of incentives such as promotion gifts to encourage purchase.
Restrictions on who can supply recreational psychoactive substances: Persons under 20 should be restricted from sale and supply. Furthermore there should be a prohibition on the manufacture and sale of legal substances by persons under 20. We agree that the court should also have the power, when sentencing a person convicted of an offence related to a legally available psychoactive substance, to prohibit that person from manufacturing or selling substances under the regime.
Substances must be stored in a child-proof and tamper proof container.
Labels must contain the phone number and address of the National Poisons Centre.
Some of these proposed minimum standards are listed as options that the regulatory body can opt to impose additional to the minimum standards. However we believe that for a robust regulatory regime these need to be minimum standards.
Yes, all substances have different properties and therefore will need tailored responses to make sure necessary regulations are put in place to minimise the harm that might occur as a result of the use of such products. We support the list provided by the Law Commission and have no amendments.
Yes. The Drug Foundation agrees with the Law Commission that a new separate regime is preferable to regulation through HSNO, however it should follow the approach of HSNO. We would prefer that new recreational psychoactive substances be placed under the Misuse of Drugs Act in an improved version of the Restricted Substances category. In 2005 the Restricted Substances Regime was added to the Misuse of Drugs Act, intended to provide a regulatory regime for new recreational psychoactive substances that were not harmful enough to justify prohibition. Current irregularities within the regime would need to be addressed as well as a strong focus on the approvals process and the accountability of manufacturers, suppliers and importers.
For such a regime to be improved, tailored criteria would need to be devised for deciding whether a substance should be regulated and an approval issued. The Law Commission has listed relevant criteria which we endorse:
These criteria must be transparent, as it is important that a decision to approve or not approve a substance must be rational. It is important that any regulatory regime is actively monitored and evaluated.
Yes. The Drug Foundation agrees with the Law Commission that approvals should be made by the Minister of Health. It important that such decisions are informed by expert advice and evaluation.
There are significant differences in the potential for harm caused by the use and availability of different drugs. New Zealand uses a three-tiered ABC classification system to distinguish and represent those different harms. The current system is used to decide whether or not a particular substance should be prohibited, and if so what class the substance sits in. This in turn determines the penalties that apply to their misuse – which could be drug use, possession, manufacture, supply or trafficking.
The Misuse of Drugs Act has been amended several times since 1975. These have altered the process by which drugs are classified within the ABC system.
In this chapter the Law Commission highlight some recently conducted analysis on the ABC classification system. This overview adds to recent criticism of the process by which drugs are classified. Historic classifications, particularly, are a sticking point. This is made more complex by the opinion that drug classification matters little in the deterrence effect; that the definition of harm is ambiguous, creating confusion in classification decisions; that the process is hindered and over-influenced by political pressures; and that scientific evidence and knowledge does not lead the debate in classification decisions.
The Drug Foundation agrees with the Law Commission that the current classification system remain. However, a review of the present classifications is required to ensure they are in-line with current evidence.
The Law Commission presents several options for reform of the current classification system, these include Option 1: a single maximum penalty for all drugs; Option 2: a two-tier classification system; and Option 3: retaining the current three-tier ABC classification system. While criticism surrounds the current system, it nonetheless appears most appropriate for New Zealand. One advantage is that it separates more accurately, than does a single or two-tier system, the different harms caused by different drugs. Furthermore it provides clearer signals as to the level of penalty associated to certain types of offending involving particular drug types.
If the current system was to be retained, the Law Commission suggests that (1) regular reviews are conducted to ensure decisions are in line with developing scientific knowledge and changes in the drug scene. (2) Before new legislation is passed, a full scale review of current classifications would also be necessary to ensure their appropriateness; as it is clear that some current classifications are inconsistent with what is now known about drug harms. Furthermore, it would be desirable that (3) monitoring and evaluation be regularly conducted to assess the effects of classification decisions, and any changes that are made to them.
The Drug Foundation considers the Law Commission’s suggestions specific to Option 3 appropriate and supports those views.
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RESOURCE The Matters of Substance article ‘The drug classification alphabet: An un-evidence-based mess’ provides perspective on the current classification system and its outcomes. |
The Drug Foundation agrees with the Law Commission that changes are required to the way in which drug classification decisions are made. This includes, for instance, using a rational scale of drug harm in such decisions.
Retaining a drug classification system, as would be the case for Option 3, would require a re-consideration of the classification criteria and better defining ‘harm’. The assessment of ‘harm’ (associated to a drug) is vital to informing decisions on drug regulation and penalties. It is therefore necessary to consider how to assess the nature and severity of drug harm.
In this chapter the Law Commission outline several proposals for better defining drug harms. While there are some differences in opinion between these proposals, most agree that a set of defined factors should be taken into account – these include physical harms, dependence potential and social harms. The Drug Foundation agree that changes should be made to the current classification process and generally support the use of a rational scale of drug harm in that process.
| RESOURCE The Matters of Substance article ‘The drug scheduling debate: The view from Vienna’ is an interesting read. It describes the issues that surround the use of a drug harm scale in classification decisions. |
The Drug Foundation agrees with the Law Commission that there should be separate criteria for determining regulations and for setting penalties.
The Law Commission also considers there are problems with the current approach to classification and determining penalties. Currently the same factors taken into account to determine if a drug should be prohibited are also those which decide the maximum penalties for drug related offences. The Law Commission argues these are very different decisions which depend upon quite different considerations. Importantly, a single list of factors for both decisions currently means that a number of factors have no relevance to penalties for drug offences. They argue that the factors considered need to be different, primarily because the culpability (a person’s blameworthiness in a drug offence) of an offender should be based solely on the harm he or she causes - not for harm that is done by others.
The Drug Foundation recommends that Orders in Council are abolished, and that classifications should be made by primary legislation. The Minister should still be required to table an expert report on drug harms during classification.
Due to the perceived danger of new drugs, changing drug trends and the expansion of the illegal drug market, a speedy classification process was implemented within the Act. Drugs are now formally classified within law using an Order in Council (an affirmative resolution procedure); a procedure the Law Commission state as perhaps having overstated importance.
The Law Commission state this because the majority of Orders have not made classification changes to new drugs; rather they have re-classified existing controlled drugs. There are also suggestions that Orders are no more expeditious than urgent legislation – this is most evident with the classification of ephedrine and pseudoephedrine taking over ten months, and an Order to classify ketamine having lapsed.
A particular concern is that a drug’s classification determines whether an offence is committed. The Law Commission rightly note that decisions of this magnitude require full parliamentary scrutiny, which an affirmative resolution process does not permit. Furthermore, that procedure is available only to create new offences and increase penalties but not to reduce them. The only advantage appears that the Minister is required to take into account evidence by expert opinion before promoting an Order.
The Drug Foundation agrees with the Law Commission’s view that the Order in Council process has unacceptable risks, and that drug classification decisions require full parliamentary scrutiny. Furthermore, if the affirmative resolution process was abolished, the Minister should still be required to present advice from the Expert Advisory Committee on Drugs (EACD) to Parliament during formal classification proceedings.
The Drug Foundation recommends that an expert committee remain to advise on drug regulation and drug classification. There is a need for such expertise in classification decisions.
The Act requires the EACD to advise the Minister when making drug classification decisions. The existence of a statutory committee of experts like the EACD ensures that expert evidence about the nature and severity of drug harms is at least considered when making classification decisions. The Law Commission highlights four issues for consideration. These include (1) whether the Committee should be independent; (2) whether the expert committee should retain consumer representation; (3) whether the current composition of the Committee has the necessary expertise; and (4) the Committee’s optimal size.
The Drug Foundation supports the Law Commission’s recommendations on the EACD committee. These are as follows:
There are strong arguments both for and against committee independence. The Commission consider an independent committee the better option, with the chair not being a Government official, and the committee holding statutory independence. Furthermore, the evidence upon which recommendations are based should be publicly available.
The argument for having a consumer’s voice on the committee is to ensure that decisions on drug policy remain well informed. While a consumer may lack the specific expertise of other Committee members, they are more likely to provide insight on areas were evidence is currently lacking – such as impacts on social situations, drug trends and availability.
The Drug Foundation believes such a role would require being well resourced. In addition, the individual should have the capacity to keep abreast of relevant trends and knowledge, be active in membership or association with the wider consumer health networks, and have the capacity to interact in viable working relationships with the other Committee members.
The Law Commission consider that expertise in pharmacology, toxicology, drug and alcohol and drug treatment and community medicine remain in the Committee; and consider that the addition of neuroscience, emergency medicine, psychiatry and expertise in drug policy, research and evaluation would add value. Expertise in drug policy would also contribute information on the approach of other jurisdictions, alternative regulatory approaches and the evidence of their effectiveness.
The Committee’s optimal size must account for appropriate expertise without becoming unduly large and cumbersome. The Law Commission recommends eight people who between them have the appropriate expertise as captured in the description above.
The Drug Foundation believes that the expanded Committee would require being well resourced. In addition, it would need to be supported by a professional secretariat, capable of reviewing and presenting preliminary data on specific classifications, while also keeping abreast of any developments (locally and internationally), and able to maintain credible links to all relevant stakeholders.
The Law Commission also notes that there is scope to expand that role to include an advisory capacity over drug education and treatment. This is much the same role undertaken by the UK’s Advisory Council on the Misuse of Drugs (ACMD), who advise ministers on measures for preventing or dealing with drug misuse.
The Misuse of Drugs Act 1975 creates various offences for dealing in controlled drugs. These offences include: sale and supply, possession for sale or supply, importation, exportation, manufacture, production and cultivation. In the current Act, some of these offences are problematic because of the broad range of activities that they cover.
The offence of possession for supply and the presumption of supply is also controversial because it reverses the onus of proof. This means that a defendant who possesses a drug above a certain quantity is presumed to have possessed that drug for the purposes of supply. Many experts believe that this is inconsistent with the New Zealand Bill of Rights Act which affirms the right of those charged with an offence to be presumed innocent until proven guilty.
The Law Commission considers that drug dealing, particularly on a large commercial scale, is the most harmful of all drug-related activities. In Chapter 10, it suggests various options to deal with problems arising from dealing offences under the existing Act.
Yes. Distinguishing sale from supply according to the class of drug in question is not logical. More importantly, when it comes to assessing how blameworthy an individual is (known in legal jargon as their ‘culpability’), other factors such as the quantity of drugs being supplied are more relevant than whether or not the drugs were sold for profit.
The Drug Foundation believes that the scale of the offending is a more accurate measure of the culpability of the offender rather than proof of sale. We agree with the Law Commission that supply for profit should not be a separate offence but one of many factors for a judge to consider during sentencing.
Yes. This is the current approach taken in New Zealand. The Drug Foundation agrees with the Law Commission that this approach allows more flexibility than incorporating the scale of offending in the definition of the offence.
| RESOURCE The Matters of Substance article ‘Sentencing for serious drug crime – how tough are we?’ provides an interesting discussion on current sentencing for drug dealing. |
Yes. The Drug Foundation believes that those who supply very small amounts of drugs to their friends without trying to make a profit should be treated differently from drug dealers who are motivated by profit. We believe that the social supply of drugs should be dealt with more like the possession of drugs and deserves less harsh penalties. In particular, we do not believe that sending those who supply small amounts of drugs to their friends without seeking to make a profit should face prison sentences. This is consistent with our view that we should be focussing our efforts to curb the supply of illicit drugs by targeting large scale commercial drug dealers.
| RESOURCE The Matters of Substance article ‘Black market forces’ includes the role of social dealing in the economics of New Zealand’s illegal cannabis market. |
The Drug Foundation agrees with the Law Commission that social supply should be distinguished at a sentencing level due to difficulties in framing such an offence into a statutory definition.
The Drug Foundation also agrees with the Law Commission’s suggestion that no matter what the class of drug, those involved in social supply should not face prison sentences as long as the offence involved small quantities, the offender was also using the drugs, the supply was to friends or acquaintances and the offending was not motivated by profit. The Law Commission describes this as expanding the presumption against imprisonment for social supply to include all classes of drugs.
The Drug Foundation acknowledges that there may be some risks that the market will shift in response to any law change that differentiates social dealing from other forms of dealing. However, the requirement to meet the strict criteria described above should effectively prevent this from occurring. Furthermore, allowing judges the discretion to distinguish social supply at a sentencing level should ensure that any aggravating factors such as links with criminal organisations are taken into consideration when determining the nature of the offending.
No. The Drug Foundation does not believe there should continue to be a special offence of possession for supply. Rather, we believe that this should be replaced with an aggravated possession offence.
The current offence of possession for supply includes a legal presumption that a defendant who possessed a drug above a certain quantity must have possessed that drug for the purposes of supply. The onus is on the defendant to prove otherwise. This means that if someone is caught with over a certain quantity of drugs, they are automatically assumed to have this for the purpose of supplying others.
This presumption is controversial. In a landmark legal case, a majority of the Supreme Court believed that this was at odds with our Bill of Rights Act which affirms the right of those charged with an offence to be presumed innocent until proven guilty.
The Law Commission presents four different options in relation to this issue. Its preferred option is scrap the possession for supply offence and replace it with two possession offences categorised by quantity, with the offence relating to the higher quantity having a higher maximum penalty. The Drug Foundation supports this option. The Expert Advisory Committee on Drugs should advise government on the quantity of drugs that would attract the aggravated offence.
This whole chapter on Personal Use has been revised since the earlier toolkit dated March 2010.
This chapter proposes that a new approach be taken to drug possession, drug use, and other offences related to personal use, and outlines what some of the options for that approach might be.
This section refers to “convention drugs” which mean controlled substances as outlined in the international conventions. This is an important point to make as the scope for reform must be in compliance with our obligations under the international conventions. This instantly removes options for reforms favouring legalisation of drugs in relation to personal use activities. While the conventions are party to a prohibition regime there is flexibility regarding the requirement for criminal sanctions in respect of the personal use and possession of drugs. This flexibility allows for a range of responses - including a non-prosecution policy to non-custodial sentences if prosecution remains.
Background
The Drug Foundation believes that any future approach to possession for personal use should incorporate the following core principles: provide greater opportunities for drug education, assessment and treatment; ensure proportionality with drug harms; mitigate the harms and costs of prohibition; ensure the best use of limited resources; reduce drug-related harms to users, their families and communities; be equitable in terms of its enforcement.
The Drug Foundation recognizes that in moving towards drug law reform, New Zealand must remain in compliance with our obligations under the international conventions. However, we believe that even within a prohibitionist framework, there is flexibility to divert more people away from the criminal justice system and into education and treatment. We note that the Law Commission itself has identified that it may be open to parties to interpret the conventions as not requiring the establishment of criminal offences for possession and cultivation of convention drugs for personal use. We believe that this allows for a range of responses – ranging from a formal non-prosecution policy through to non-custodial sentences, if prosecution is to remain.
We elaborate on our proposed approach in our responses to the specific questions below.
Should there continue to be a criminal offence for drug use or does it suffice to rely on the offence of possession for personal use?
The Drug Foundation does not believe that there should continue to be a separate criminal offence for drug use per say. Rather, we believe that any response towards an individual who uses drugs should be based on the possession, rather than the use, of drugs. Our position is based on the fact that there are currently very few instances where police take action against an individual for use instead of possession. In 2008, for example, 93% of cannabis possession and use offences, and 97% of non-cannabis possession and use offences, related to possession. Furthermore, our position also reflects the fact that the resources needed to prove consumption are generally impractical. We do believe that certain types of drug use – for instance, drug use in front of children – could be taken into account as an aggravating factor during sentencing for more serious drug-related offences.
What approach should be taken where possession is for the purpose of personal use? In particular, what alternatives (if any) to prosecution should be used?
The Drug Foundation agrees with the Law Commission that the current approach to the possession of drugs for personal use is not the most effective way to respond to this issue. Under current New Zealand law, the consequences of possession for personal use and related offences are dealt with through the criminal justice system. However, this approach is somewhat loosely upheld by law enforcement officials (particularly in relation to Class C drugs) who frequently resort to informal mechanisms such as police discretion, involving cautioning and confiscation rather than prosecution.
A policy is being tested in the Auckland region where minor cannabis offenders receive a formal caution for their offending to help reduce the number of minor cases clogging the court system. The official caution is recorded but no criminal conviction applies. The pilot scheme was extended after being deemed a success in the North Shore. This approach is not viewed by the police and councils as a soft approach as people are still being held to account for their actions. According to the Waitemata Police District Commander, Superintendent Bill Searle, “It is a common sense approach. We are looking for better ways to deal with minor offences which would not get a significant sentence anyway.”
Regardless of how well such cautionary and non-punitive approaches may be working, our chief concern is that such schemes are not currently supported by legislation. We strongly agree with the Law Commission that any new approach to possession for personal use must be provided for in legislation. This helps provide certainty and transparency for the police, the wider public and for people who use drugs.
Various other jurisdictions, notably all Australian States and Territories, have adopted more effective approaches to possession for personal use than we currently have in New Zealand. These models better emphasise the health and educational needs of drug users and are based on directing users into assessment, education and/or treatment rather than into the criminal justice system. While no single international model can be directly transplanted into the New Zealand context, the Drug Foundation believes that we can draw on successful aspects from these international models when formulating our own approach.
We welcome the wide range of options the Law Commission has considered as possible alternative approaches to personal use offences. Of these, we acknowledge that the Law Commission has identified confiscation and monetary penalty, a formal cautioning scheme for all drugs, or a combination of both these options as its preferred options. The Drug Foundation believes that there are merits in an approach which seeks to combine aspects from an infringement scheme with aspects from a formal cautioning/referral scheme, and we elaborate on our proposed approach below. This type of approach is known as ‘prohibition with civil penalties’ and is currently in use in various jurisdictions overseas including Western Australia.
A recent report into New Zealanders’ knowledge of and attitudes to illegal drugs found that the illegal status of drugs was not a deterrent for drug use but was a deterrent for seeking help. Respondents noted the need to reduce stigma against people with drug dependence and to promote supportive environments that make it easier to seek help. The Drug Foundation believes that a new approach incorporating cautioning and infringement schemes are a step in the right direction towards a more balanced approach to drug use and its harms.
RESOURCE
The Matters of Substance article ‘Reforming cannabis penalty regimes to reduce harm’ provides a list of reform options to reduce cannabis related harm.
(www.drugfoundation.org.nz/lets-talk-about-pot/cannabis-penatly-regimes)
The Matters of Substance article ‘Diversion: Australia’s alternative to drug law reform’ provides a look into Australia’s Illicit Drug Diversion Initiative (IDDI), which has enabled a vast expansion of diversionary opportunities for illicit drug users in Australia.
(www.drugfoundation.org.nz/moda/diversion-australias-alternative-to-drug-law-reform)
Our suggested approach to personal use
The Drug Foundation believes that any new scheme for personal use should apply for all drugs that are currently scheduled as controlled drugs. However, we believe that the response should differentiate between lower risk of harm drugs such as cannabis (that are generally also higher prevalence), versus higher risk of harm drugs such as methamphetamine (that are generally also lower prevalence). We support a mandatory infringement scheme for lower risk of harm drugs such as cannabis operating alongside a direct referral scheme for users of higher risk of harm drugs such as methamphetamine and opiates. This would remove police discretion to escalate offenders directly to prosecution.
The primary rationale for such a split in response is to ensure that those who are in greatest need of assessment and treatment receive it, while avoiding overburdening the treatment sector with those users who are not dependent. Not all people caught with drugs are dependent drug users. In general, users of higher risk of harm drugs such as methamphetamine are more likely to be in need of assessment and treatment than users of lower risk of harm drugs such as cannabis and ecstasy. Recent research has shown that only 10% of those who ever use cannabis meet criteria for dependence at some point in their life. Similar data from Western Australia show that possibly 0.2% or less of those with a cannabis use disorder are likely to be apprehended by the police. Mandatory education of all adults apprehended with cannabis is therefore clearly not feasible or necessary.
While we do not intend to provide the Law Commission with the specific mechanics of a new approach to personal use offences, we outline some of the key aspects of such a scheme below.
Under any new scheme, the personnel possession of drugs would remain illegal. However, those persons found in possession of small amounts of cannabis (and other drugs deemed to be ‘low risk’ such as ecstasy) would receive an infringement notice and self help resources. The infringement fine will be proportionate to the offence. All drugs will be confiscated. As an alternative to paying a fine, offenders could chose to attend an education session. This could take the form of a screening/intervention model. Those not paying fines and not attending an education session would not be prosecuted but would face an additional administrative fee and given an extension to pay. Those receiving repeated infringement notices within a stipulated period (for example, two years) are likely to have a dependence problem. As such, we propose that such persons would not have the option of paying a fine but would be required to complete a more comprehensive assessment and education session. Failure to comply would result in some form of sanction through a diversion scheme, for example.
Those persons found in possession of small amounts of higher risk of harm drugs such as methamphetamine would be required to attend a compulsory assessment by a treatment professional at the first instance. Once again, failure to comply with this assessment would result in a sanction that could take the form of diversion. We acknowledge that the details of this approach need to be carefully operationalised and would be willing to assist the Commission with this process. Furthermore, the success of any such approach is obviously contingent on adequate resourcing.
The Drug Foundation acknowledges that the level of compliance with paying an infringement or attending an education session is integral to the viability of any such approach to lower risk of harm drugs such as cannabis. Data from Western Australia demonstrate that between April 2004 and March 2007, a total of 9,328 infringements were issued to 6,790 cannabis infringement notices. Of these, about 75 per cent complied with their penalty of either paying a fine or attending a cannabis education session. A two-phased approach to the collection of fines was important to maximise compliance. There is also strong evidence to show that such a scheme is cost-effective, with an estimated net saving of $2.3 million over three years when compared with the alternative of adult offenders only being dealt with by Magistrates Courts.
We believe that the implementation of such a scheme should be preceded and accompanied by a high profile public education campaign on the harms of drugs and the laws that apply. The scheme should also be subject to ongoing monitoring and review.
Concerns that this type of approach may lead to an increase in drug use appear to be unfounded. Research following the introduction in 2004 of the CIN Scheme in Western Australia found reductions in the use of cannabis that were similar to those observed in other States. For example, the proportion of people in Western Australia using cannabis in the past 12 months decreased from 19% in 2002 to 12% in 2007. However, the proportion of recent cannabis users who said that they had grown at least some of the cannabis which they had smoked over the past year increased from 11% pre phase to 25% post phase. This suggests a considerable increase in the proportion of users who were self supplying to some extent and thus reducing their reliance on the illicit cannabis market, a desirable outcome.
Since the introduction of the CIN scheme in Western Australia, a higher proportion of the Western Australia public believe that cannabis is harmful than did before the scheme came into place. The proportion agreeing that ‘people usually have a good time when they use cannabis’ fell from 57% in phase one to 39% in phase two. The belief that ‘using cannabis once a month was not dangerous’ fell from 40% to 28%. These data refute predictions that such schemes portray the message that cannabis use is not harmful. However, they reinforce the importance of a high profile and effective public education campaign to accompany any legislative change. Research evaluating public attitudes towards the CIN scheme also reveals considerable public support for the scheme, again illustrative of the importance of an effective public education campaign.
If possession for personal use results in a prosecution in the courts, what approach should be taken?
We believe there are some merits (but also drawbacks) to all three options proposed by the Law Commission for personal use resulting in a prosecution in the courts. While extension of the Police adult diversion scheme to a wider range of drug offences, for example to possession of Class A and B Drugs, may be a step in the right direction, there is currently no statutory basis for this scheme. Furthermore this approach would not be useful if a well functioning infringement and cautionary scheme was in place.
With respect to the option for less severe penalties, we agree that the current presumption against imprisonment for Class C personal use offences be extended to all drug types. However this in itself would not provide effective responses to dependent users who would be better served by receiving assessment and treatment and would derive no benefit from receiving a criminal record. Furthermore, we do not believe that the severity of penalties has a significant bearing on the reduction in demand for drug use.
We believe that court-based diversion into assessment and treatment does help address the underlying cause of the offending and helps to reduce re-offending. As such, we are strongly in favour of this option but recognise that current resources constraints need to be urgently addressed for the full benefits of diversion into assessment and treatment to be realised.
Again, we believe that New Zealand can draw on the experience from the Australian Illicit Drug Diversion Initiative. The Australian diversion initiatives have been associated with numerous benefits including large reductions in criminal justice costs. Compared to a traditional criminal charge, cannabis cautioning produced a saving of 1.5 hours per officer at the point of arrest and 7 hours in cases where an offender would have otherwise had to go to court. Importantly, Australian diversion programmes have also reduced offending and the likelihood of imprisonment from reoffending. Another significant benefit has been reduced drug use, suggesting that fears diversion might lead to an increase in drug use are unfounded. Lastly, diversion programmes have increased the cost-effectiveness of responses. One programme offered savings equivalent to $2.98 for every $1 invested, attributed to reductions in the costs of police investigations, hospitalisations, criminal activity and prison costs.
How should any new approach taken to personal use offences apply to the offence of possession?
The Drug Foundation acknowledges that determining eligibility for a personal use offence is challenging. We note that the Law Commission has suggested two main approaches to this issue – the setting of a quantifiable amount or requiring police to make an assessment in each case. Based on the experience in various Australian states, we believe that these options are not mutually exclusive. As such, the Drug Foundation supports an approach where both options work in tandem. While quantifiable amounts should be set, we believe that police should retain a level of discretion (within strict parameters) to make an informed assessment as to whether drugs possessed are for personal use.
If use remains a criminal offence, should “aggravated” use be excluded from any new approach taken to personal use offences?
Yes. We support the Law Commission’s view that aggravated offences (e.g. use in front of a minor) encompass greater culpability than simple possession, as it moves beyond harm to an individual to harm towards others. We believe that in most cases, other more appropriate mechanisms are in place to deal with such offending – for example, CYF-related legislation. As such, we believe that aggravated use be excluded from any new approach to personal use offences. Further grounds for this exclusion are to avoid unnecessarily complicating the law.
Should the possession of utensils for the purpose of using drugs remain a criminal offence?
No. The Drug Foundation believes that the possession of utensils for the purpose of using drugs should no longer remain a criminal offence. This reflects our view that possession of drugs (or utensils) for personal use is more appropriately dealt with outside the criminal justice system. Furthermore, the current reality is that police do not often charge a person with a utensils offence as many people found in possession of a utensil will have some drugs in their possession. In that sense the possession of utensils does not reflect any additional criminality on their part. We think these are sufficient grounds to scrap the possession of utensils as a criminal offence.
The Drug Foundation also supports the decriminalisation of possession of needles and syringes. It is our view that legislation should focus on reducing the harm, to IV drug users, those they associate with and the community at large, which results from needle sharing, in particular the transmission of HIV and Hepatitis C. While we welcomed the 2005 Amendment which reverses the onus of proof for people charged with possession of a needle or syringe, there is still ambiguity in how this is applied on the ground. In practice the concern by users is more likely to be one of perception. There is substantial international research supporting the assertion of the New Zealand Needle Exchange and other groups that fear of being picked up and arrested increases needle and syringe sharing.
Should cultivation of a prohibited plant for personal use be included within any new approach taken to personal use offences?
The Drug Foundation recognises that this is a challenging area. The rationale for incorporating cultivation within any new approach to personal use offences is to weaken the criminal black market. Evidence from Western Australia where cultivation offences for personal use are covered by the cannabis infringement scheme shows that this has shifted people away from the black market and has not resulted in a rapid expansion in cannabis cultivation and the cannabis market. However, we acknowledge that there would be significant challenges to operationalising such a system in New Zealand. As such, we believe that the appropriate responses to cultivation for personal use need to be further carefully considered.
Do you agree that the approach that is taken to personal use offences committed by adults should not be extended to personal use offences committed by youth?
We believe that an enhanced response to personal use offences committed by youth is necessary. Youth who use drugs are more vulnerable to drug-related harms than adults. They are also more likely to engage in risky behaviours when older and to develop drug-related problems. Furthermore, drug-dependent youth are less likely than adults to seek treatment. As such, we believe it is important that any intervention for young people apprehended with drugs aims to direct them into education and assessment.
While there is already significant scope within the youth justice system in New Zealand to identify and deal with drug treatment or other rehabilitative needs, we believe that inadequate numbers of youth are receiving the interventions they need. For example, in 2008, 42% of youth apprehensions by police for illegal drug offences resulted in a warning or caution only. The Drug Foundation believes that many of these youth could benefit from an intervention that couples a caution or warning with at least one mandatory educational session. This session would aim to increase their knowledge and understanding of the harms associated with drug use, and should be flexible enough to provide or refer those who need it for further assessment and counselling. Support and involvement with families during this process is also important. Failure to attend could result in the young person being referred back to the youth court.
The implementation of such a scheme within the youth justice system would ensure consistency and certainty when dealing with youth drug personal use offences, and would maximise the opportunities to provide education and assessment to group that are particularly vulnerable to the harms from the misuse of drugs.
RESOURCE
The Matters of Substance article ‘Drug law and the youth court’ where Principal Youth Court Judge Andrew Beacroft gives an interesting insight into the workings of the youth justice system.
In addition to offences relating to dealing and possession of drugs, the Misuse of Drugs Act also contains a range of offences targeting other drug-related activities (e.g. production of precursor substances, possession of pipes and utensils, and the laundering of profits of drug offences). It also contains procedural matters that apply when a charge is being contemplated or has been laid. In Chapter 12, the Law Commission reviews these other offences and procedural matters and considers whether any changes are required.
In Chapter 14, the Law Commission outlines the key ways that are available to enforce our drug laws. It also discusses the changes to search and surveillance powers that are proposed by the new Search and Surveillance Bill. Finally, it considers whether further powers are required to ensure that any proposed regime is able to be enforced effectively.
The Law Commission identifies a number of additional offences, including those relating to precursor substances, importation and supply of pipes/utensils, and knowingly permitting any premises, vessel, aircraft, hovercraft, motor vehicle or other conveyance to be used for the purpose of committing an offence under the Act.
The Drug Foundation has formed no view on most of these offences, and provides no advice in this toolkit. Many of the offences are of secondary importance to issues such as dealing and personal use.
However we do have a view on offences relating to precursor substances and internal concealment powers.
Most precursor substances also have legitimate industrial or medical uses, which is often their primary purpose. As such, there is some overlap in the regulation of precursor substances between the Misuse of Drugs Act, the Hazardous Substances and New Organisms Act 1996, and the Medicines Act 1981.
There is a specific issue with the classification of precursor substances that needs attention. Currently, some precursor substances are scheduled as controlled drugs as well as precursor substances. The Drug Foundation shares the Law Commission’s preference for substances to be scheduled as either precursor substances or controlled drugs, but not both. If a precursor substance is being used mainly or only for illegitimate purposes, we agree that it is appropriate that it be reclassified as a controlled drug and that the offences and penalties in relation to controlled drugs apply.
The Drug Foundation also believes that indirect harms should be taken into account when determining the appropriate classification level of precursor substances.
Yes. The Law Commission identifies several aspects of the current internal concealment regime that might be changed. The Misuse of Drugs Act currently allows detention of a person for up to 21 days where there are reasonable grounds to believe that a person has Class A or B drugs secreted within their body for any unlawful purpose. The detained person must consent to an examination before it can be carried out.
The Drug Foundation does not believe that someone who is a drug user should be able to be detained for 21 days. This is a disproportionate response. We agree with the Law Commission’s proposal that the power of detention be restricted to those suspected of dealing/trafficking offences only. This is more consistent with a harm minimisation approach to enforcement. There are higher risks associated with drug users who spontaneously swallow poorly packaged drugs when fearing arrest than with drug traffickers who conceal drugs that are carried in larger quantities and packaged for transport in the body. We also share the Law Commission’s view that the costs and resources involved in such detentions are inappropriate where the offence is relatively minor.
The Drug Foundation is opposed to extending the maximum period of detention beyond 21 days. We agree with the Law Commission that this is not a sufficiently big problem to warrant an extension to what is already a very long detention period.
The Drug Foundation believes that it is important to keep the current requirement for a detainee to give their consent to an examination. However, we favour amending the internal concealment regime to permit the use of a wider range of medical imaging techniques and technologies.
Many controlled drugs also have a legitimate, legal, medical purpose. Current laws prohibiting supply and use must therefore contain specific ‘exemptions’ that allow for the production and supply of drugs, and also their medical use by people who need them. Exemptions are also required to allow for controlled drugs to be used in medical and scientific research and for industrial purposes.
In this chapter the Law Commission describe the legislation currently used to assist legitimate supply and use, while also controlling misuse and diversion. The Law Commission examines the current system and present suggestions that would improve its performance. They also offer several options that could develop access to medicinal (raw unprocessed) cannabis, and discuss which is most desirable.
The Drug Foundation note that there are anomalies within the Act and agree with the Law Commission that changes are required. The Drug Foundation’s recommendations are outlined below.
Exemptions are needed to allow for the legitimate supply and medical use of controlled drugs to patients, in the form of medicines. While such exemptions must not unduly prevent doctors prescribing them, it is equally important that they also minimise the risk of inappropriate use, including drugs being diverted to illegal markets.
The Law Commission outline the range of medical exemptions; this is an extensive and varied list including prescribers, pharmacists, and others. The Law Commission query whether all of the various exemptions are still required and if any different exemptions might be needed; and if some of the separate exemptions could be combined to produce a simpler and clearer list of authorisations.
The Drug Foundation considers that clarity and usability are of most importance to the Act. The Drug Foundation agrees with the Law Commission that many of the separate exemptions could be combined to produce a simpler and clearer list of authorisations.
Specific changes are required to:
The Misuse of Drugs Regulations 1977: The regulations house additional exemptions, described as ‘permissions’. These apply to controlled drugs that are approved medicines. The Law Commission considers that allowing significant matters of policy to be implemented by regulation is inappropriate. While acknowledging the need for flexibility to address new and changing circumstances, the Law Commission state that regulation-making powers be more limited, and should typically deal only with emergencies. The Drug Foundation agrees with the Commission.
The Medicines Act & the Misuse of Drugs Act: Both Acts have exemptions for controlled drugs that are medicines. These are often framed differently, making it unclear, in some circumstances, what the precise powers of the exemptions are. The Law Commission suggests that controlled drugs exemptions applying to medicines should be in one act (with cross-references) and subject to one consolidated set of conditions. The Drug Foundation agrees with this.
The Drug Foundation note that the current legislative controls surrounding diversion and misuse are not adequate, and that further controls are needed.
The misuse and diversion of controlled drugs that are medicines represents a big challenge to the regulatory authorities and medical industry. The drug-related harm associated with the misuse and diversion of medicines is similar to that for other types of drugs.
Currently there exist a number of restrictions on prescribing controlled drugs. Most are aimed at reducing the opportunity for drug seeking for misuse or diversion to sale in the black market.
The Law Commission recognises there are limits on what can be done to deal with the misuse and diversion of medicines by way of regulatory controls and prescribing limitations. Current laws must therefore be supplemented by prescribers and pharmacists applying professional and personal judgement whenever they provide controlled drugs to a patient.
The Drug Foundation agrees with the Law Commission that professional training and guidance, appropriate administrative systems, and monitoring and review would go a long way to further reducing the misuse and diversion of medicines.
In this chapter the Law Commission highlights research which proposes that New Zealand needs:
The Commission state while legal controls must underline these types of approaches, they must also allow health practitioners flexibility and discretion when assessing and treating their patients.
| RESOURCES The Matters of Substance article ‘Not what the doctor ordered’ is an interesting read; it describes the issues surrounding the diversion and misuse of prescription drugs in New Zealand. Sheridan et al, 2008. Prescription drug misuse: Issues for primary care. School of Pharmacy, Auckland University. Funded by the Ministry of Health, Wellington. |
The Drug Foundation recognises that the restrictions of Section 24 aim to minimise controlled drug misuse, and that there are limitations to the capacity of primary healthcare to manage high risk patients.
In New Zealand select medical practitioners, under Section 24 of the Act, are permitted to supply controlled drugs as a treatment for drug dependence. This is predominantly in the form of methadone. It is an offence for any other medical practitioner or prescriber to provide controlled drugs for this purpose, unless they obtain an authorisation and have specialist (alcohol and drug clinic) oversight.
The aim of restricting the range of medical practitioners who can prescribe drugs for dependence is to limit access and more closely monitor drug dependent patients. The Law Commission recognises that methadone is amongst the most widely diverted prescription drug in New Zealand. The Law Commission asks whether Section 24 is too restrictive and whether other medical practitioners (primary healthcare) should play a greater role in drug treatment.
The Drug Foundation recognise that primary healthcare is the generally the first point of contact for most to the health sector. It also provides the ability to treat other health conditions which are often associated with drug misuse and abuse. Recent New Zealand research identifies limitations within the health sector. This specifically relates to the ability of primary care physicians to consider and open dialogue with their patients on drug and alcohol issues. Education on alcohol and drugs for undergraduate medical students is also underprovided. These fundamental limitations need to be considered before drug treatment is opened up to the wider health sector; especially outside the scope of specialist oversight.
The Drug Foundation agrees that the law should authorise the medicinal use of cannabis for people suffering from chronic or debilitating illness.
Cannabis based medicines have been shown to be effective in the treatment of a number of diseases; they also extend the current therapeutic options available to clinical practice. Cannabis medicines are available in two forms. These are either products that are based on ‘raw’ forms of cannabis (smoked or inhaled in vaporised form) or pharmaceutically derived forms of cannabis, for example Sativex®.
Currently in New Zealand cannabis medicines are only lawfully available for medicinal use if produced, supplied or used under the exemptions of the Act. Cannabis based medicines are available to patients that fit select criteria, and may be administered to those patients according to the clinical guidelines made available in 2007 – these are specific to the pharmaceutical product Sativex®.
The Drug Foundation think that the medicinal use of cannabis should be clearly separated from any consideration of its legal status as a recreational drug; the same as currently applies to opiate and opioid drugs such as codeine, morphine and oxycodone.
The Law Commission considers in this chapter whether further exemptions in the Act are required, and offer several suggestions as to possible changes. These changes would make ‘raw’ cannabis for medicinal use more available. If a scheme allowing the medical use of ‘raw’ cannabis was considered, a number of regulatory issues would exist.
The Law Commission presents three possible options for the regulation of cannabis production for medical use. The Law Commission’s preliminary view is that Option 1 – to grant one or more cultivating licences to allow cultivation and production of cannabis plant for medial use – is the best alternative.
The licensing option is a closely controlled model and therefore minimises the risk of diversion. It would allow for the production of a limited supply of ‘raw’ cannabis material in a standardised way, which addresses at least some of the health issues.
The Law Commission also considers that this approach would be better than licensing users and their carers to cultivate their own supply. Under Option 1, there would be relatively few licence holders and they would exist under stringent controls.
The current regulatory infrastructure would ensure a credible supply of pharmaceutical grade cannabis. The controls would include a limit on the number of plants, the type of plant, the content of THC and other cannabinoids, and other important quality standards that ensure a standardised product suitable for medicinal use. Other important regulatory controls would include the locations at which cannabis could be grown, and put in place security requirements.
Option 1 is a commercial model which would require commercial viability. This, however, leads to the issue of whether the model would produce cannabis for supply at a reasonable cost. Given that only relatively small numbers of people are likely to be eligible to use cannabis medicinally, this is uncertain. Nonetheless, Option 1 remains the most suitable available to produce pharmaceutical quality medicine, appropriate for patients with chronic illness.
Like many medicines, the supply of medicinal cannabis would require a medical prescription. This would better enable a health professional to maintain clinical oversight and to alter treatment when necessary.
The Law Commission suggests a central register of authorised users be established, primarily because a register would detail the numbers of users, and make medicine use more easily monitored. One disadvantage is that maintaining a central register would result in further regulatory costs.
The Drug Foundation has developed a formal policy position on the medicinal use of cannabis. The policy position aligns with the Law Commission’s view that if cannabis is to be used medicinally, structures and processes would need to be developed. This includes regulations to permit use and set conditions; guidelines for medical practitioners; and a licensing system for users, growers/processors of natural cannabis, and distributors.
| RESOURCES NZ Drug Foundation policy position on Medicinal Cannabis. The Matters of Substance article ‘Pain pot and politics’ is an interesting read - it describes the issues that surround raw cannabis for medicinal use. Medsafe’s cannabis prescribing information and clinical guidelines can be accessed through this link: www.medsafe.govt.nz/profs/RIss/SativexApplicationApprovalForm.doc |
New Zealand’s drug policy is based on the principle of harm minimisation – which aims to improve social, economic and health outcomes for the individual, the community and the population at large.
Harm minimisation encompasses a wide range of approaches. The strategies that support harm minimisation can be divided into three groups or ‘pillars’ – these are supply control, demand reduction and problem limitation. All three ‘pillars’ can be used in various combinations.
Ensuring that an overall balance is met between the pillars is vital, as each pillar contributes to the universal approach.
There are concerns currently that the demand reduction approach, in particular, does not receive the level of support and attention required. Current treatment services are inadequate. There are specific problems in some geographical areas, for some service types (e.g. residential programmes), and for some population groups - especially youth. Treatment services available to the court system are also insufficient.
This chapter describes a range of demand reduction and problem limitation approaches – including their limits and effectiveness – and examines what possible changes are required to improve the balance between the ‘pillars’.
The Drug Foundation agrees with the Law Commission that any new legislative framework should recognise and better support all three pillars of our drug policy - supply control, demand reduction and problem limitation.
| RESOURCES The Matters of Substance article ‘Through the maze’ provides comprehensive background as to why our existing drug law is out of date and how it can be better realigned to support our drug policy. See the Drug Foundation media release ‘Treatment smartest option for drug offenders’ for background on why we support further emphasis on treatment. |
The Drug Foundation supports the Law Commission’s proposal for the new legislative framework to be administered solely by the Ministry of Health. This should help ensure that the drug use is seen firstly as a public health rather than a criminal justice issue.
Yes. The Drug Foundation agrees with the Law Commission that those who abuse or are dependant on alcohol or drugs should have greater opportunity to receive assessment and treatment when they come before the courts. Drug courts and similar programmes implemented overseas, which ensure that appropriate focus is given to the particular needs of drug users in the criminal justice system, appear desirable. However, further refinements to programmes like these are required before they can become an established part of the criminal justice system. At the moment, there is the potential for delay in the court process if offenders who would otherwise be dealt with on their first appearance must instead be remanded to the specialist court or programme. The success of these types of programmes depends very much on adequate treatment services being available. This in turn is dependent on adequate resources being invested.
| RESOURCES The Matters of Substance article ‘Rehabilitating the criminal justice system’ provides an overview of how to better approach the issue of drug using criminals. For further information on reducing alcohol and other drug problems in New Zealand’s criminal justice system, see the Drug Foundation’s Policy Paper and Evidence Review. |
Yes. The Drug Foundation shares the Law Commission’s view that a new legislative framework should allow for additional measures aimed at reducing the harm associated with drug use to be adopted by regulation.
Problem limitation measures such as Needle Exchange Programmes aim at reducing the specific harms that result from existing drug use. A range of measures and approaches have been developed internationally.
We think that it is important that legislation anticipates the development and adoption of new types of harm reduction measures.
Yes. The Drug Foundation welcomes the consideration the Law Commission has given to supporting and encouraging Government efforts in the treatment area. We believe that the development of a blueprint for drug, alcohol and other addiction services provides a very practical way to increase the emphasis on treatment. This would be preferable to imposing additional reporting requirements on the Minister of Health or the establishment of yet another advisory committee. We support the Law Commission’s initial view that the Mental Health Commission would be an appropriate agency to lead such work, with support from key groups such as ALAC, the New Zealand Drug Foundation and the National Committee for Addiction Treatment.
The Alcoholism and Drug Addiction Act 1966 allows drug addicts to be compulsorily detained to undergo assessment, detoxification and treatment. The Act is out of date, and there are difficulties in reconciling its broad powers of detention with the rights and protections in the New Zealand Bill of Rights Act 1990. The Ministry of Health is currently reviewing the Act. In Chapter 16, the Law Commission looks at whether a modified regime for compulsory treatment should be part of any new package of drug laws.
Yes. The Drug Foundation agrees with the Law Commission that there is a place for a limited compulsory civil detention and treatment regime containing appropriate safeguards. People who are drug dependent are often incapable of making rational decisions over their substance use and personal welfare. Short-term compulsory intervention may get them to a position where they are able to more readily help themselves. If there was no compulsory regime, their access to treatment might be significantly eroded.
The Drug Foundation supports the following key features of a new civil detention regime:
Yes. The Drug Foundation agrees that compulsory detention and treatment should only be available when all of the above conditions are met. This is an essential safeguard to ensure that the regime is not used inappropriately.
The Drug Foundation does not believe it is appropriate to include the criteria “poses a serious danger to the health or safety of others” as a condition for detention. Unlike the case with mental health legislation, it is not possible to predict with a reasonable degree of accuracy which groups of drug addicts will pose a serious risk to others to justify detaining a person to prevent that risk.
| RESOURCE The Matters of Substance article ‘Review of Alcoholism and Drug Addiction Act 1966’ provides a useful overview of the problems with the current Act. |