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.

• This Matters of Substance interview is available on the Drug Foundation’s YouTube channel: www.youtube.com/nzdrugfoundation