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.
|
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. |