Moving on MODA: a proposed new approach to personal possession
The Law Commission is considering submissions on Controlling and Regulating Drugs – its issues paper on the reform of the Misuse of Drugs Act 1975. Sanji Gunasekara outlines some key points from the Drug Foundation’s submission about a new approach to personal possession of drugs.
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The Drug Foundation has long had an interest in dragging our 35-year-old drug law into the 21st century. We agree with the Commission that the Act is outdated and does not reflect current understanding of drug use and related health, social and economic harms. Debate relating to drug law reform tends to be influenced by ideology and political rhetoric rather than the best available evidence, and this has not helped the development of effective drug law.
Underlying our submission is the view that drug use should be viewed primarily through a health and social lens rather than a criminal justice one. As such, we welcome efforts at rebalancing our drug laws so that efforts to curb supply are better supported by measures to reduce demand and minimise harm. For decades, funding for prevention and treatment services has been woefully inadequate. Funding for these crucial areas must increase significantly if benefits from the proposed legislative changes are to be fully realised.
Any drug law reform in New Zealand must comply with our obligations under international conventions. But even within such a prohibitionist framework, there is flexibility to direct more people away from the criminal justice system and into assessment, education and treatment.
In our submission to the Law Commission, we outline several principles we believe should underpin a more effective approach to personal possession and use of drugs. Such an approach should not encourage drug use nor patterns of use that may increase harm: it should direct dependent drug users into education and treatment; it should reduce the adverse social costs of being apprehended for minor drugs offences; it should move supply of drugs away from large scale, criminal, commercial suppliers; and it should free up Police and the courts to deal with more serious crimes.
The Drug Foundation believes a new approach to personal use for adults could combine aspects from an infringement scheme with aspects from a formal cautioning/referral scheme. This type of approach is known as ‘prohibition with civil penalties’ and is currently in use in various jurisdictions overseas including Western Australia (WA).
Crucially, we believe any response must differentiate between lower risk drugs such as cannabis (which tend also to have higher prevalence) versus higher risk drugs such as methamphetamine (with generally a lower prevalence). For lower risk drugs, we favour a mandatory infringement scheme operating beside a direct referral scheme for users of higher risk drugs.
Under our proposed scheme, the personal possession of all illicit drugs would remain illegal. 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. Fines would be proportionate to the offence, and all drugs would be confiscated. As an alternative to a fine, offenders could chose to attend an education session. Those not complying with a fine or education session would face an additional administrative fee but would not be prosecuted through the courts.
Those receiving repeated infringement notices within a stipulated period (for example, 2 years) are likely to have a dependence problem. We recommend such persons be required to complete a comprehensive assessment. Failure to comply would result in some form of sanction such as a diversion scheme.
Persons found in possession of small amounts of higher risk drugs such as methamphetamine or opiates would be required to attend a compulsory assessment by a treatment professional at the first instance. Once again, failure to comply would result in a sanction that could take the form of diversion.
The primary rationale for a differentiated response is to ensure that those who are in greatest need of assessment and treatment receive it, while avoiding overburdening the treatment sector with users who are not dependent.
In general, users of higher risk 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 percent of those who use cannabis meet criteria for dependence at some point in their lives. Similar data from WA shows that possibly 0.2 percent or less of those with a cannabis use disorder are ever likely to be apprehended by the Police. Mandatory education of all adults apprehended with cannabis is therefore clearly not feasible or necessary.
Of course, the level of compliance with an infringement/education scheme is integral to the viability of any such approach. Data from WA demonstrates that about 75 percent of those receiving infringements eventually complied with their penalty. There are also strong economic grounds to support such an approach. According to the WA Health Minister, “The Cannabis Infringement Notice scheme has also proven to be cost-effective, saving an estimated $2 million over 3 years when compared with the alternative of minor cannabis offenders being dealt with by magistrates’ courts and clogging up the justice system.”
Concerns that this type of approach may lead to an increase in drug use appear to be unfounded. Following the introduction of the WA scheme in 2004, there were actually reductions in cannabis use. For example, the proportion of people using cannabis in the past 12 months decreased from 19 percent in 2002 to 12 percent in 2007, a similar decline to that observed in other states across Australia. Notably, a higher proportion of the WA public believe that cannabis is harmful than did before the scheme came into place, refuting predictions that such schemes portray the message that cannabis use is not harmful.
For example, the proportion agreeing that ‘people usually have a good time when they use cannabis’ fell from 57 percent to 39 percent, and the proportion believing that ‘using cannabis once a month was not dangerous’ fell from 40 percent to 28 percent. Of course, it is essential that the implementation of such a scheme should be 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.
The Drug Foundation recognises youth are more vulnerable to drug-related harms than adults. As such, we recommend that all youth apprehended with drugs receive an intervention that couples a caution or warning with at least one mandatory educational session. This session would aim to increase 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.
Our submission on the MODA review covers a range of issues beyond personal possession and use. Our other key recommendations include the need for a comprehensive review and improved process for the classification of drugs, a reorientation of enforcement resources towards large-scale commercial drug dealers and the need for much stronger regulation of non-conventional drugs to avoid a repeat of the party pills fiasco.
We also agree with the need to reform the Alcoholism and Drug Addiction Act 1966, another obsolete piece of legislation that is clearly inconsistent with the rights and protections in the New Zealand Bill of Rights Act 1990.
