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Why discretion missed the mark

23 March 2021

There were big expectations about what the 2019 amendment to the Misuse of Drugs Act would achieve. 18 months down the track it is clear the change has not gone far enough. Don Rowe reports  

When the Misuse of Drugs Act Amendment Bill passed its final reading in August, 2019, advocates called it ‘the most significant drug reform in 40 years’. The bill, which codified into law the police’s right to exercise discretion in the prosecution of drug-related crimes, was championed as a ‘triumph for compassion and a triumph for common sense’. It formalised an existing system of decriminalisation de jure, proponents said, which although politically convenient had led to a disproportionate rate of Māori convictions.

And it seemed to put into law the ‘health based’ approach that Jacinda Ardern championed at the United Nations when she said New Zealand had rejected Trump’s call to join the ‘War on Drugs’ by offering an alternative path to those charged with drug offences.

But today, almost two years later, there are concerns the significance of the bill was overstated, and that the ‘arc of moral history’ has moved too slowly towards the justice promised by MPs on its passing. Between August 2019 and July 2020, only 10.7% of total proceedings brought by police resulted in a health referral, and the proportion of Māori receiving court action for low-level drug offences still remains significantly higher than it is for non-Māori.

Contrary to popular assumption these court actions can still have severe consequences – in 2019/20, 3067 people in total were convicted of low-level drug offences, for 1126 of them this was their most serious offence. The amendment, while pitched as a fundamental shift in the policing of drug crime, may have served as more of a stop-gap – and an insufficient one at that.

Khylee Quince smiling, with grass and trees in background
AUT associate professor Khylee Quince: “The police are not law makers and should really just be applying and implementing the law as it’s set out by Parliament."

According to Khylee Quince, associate professor of law at Auckland University of Technology, the amendment was a direct reaction to criticisms of the de facto decriminalisation position of police, which had seen arrests decrease as officers applied their own discretion when deciding whether or not to progress drug offences.

“The police are not law makers and should really just be applying and implementing the law as it’s set out by Parliament, that’s our constitutional position, and so the system of discretionary decriminalisation was a bit of a mockery of that,” she says. “It was a bit of disrespect for the rule of law and the idea of parliamentary supremacy, and that parliament is the supreme lawmaker.”

“The second thing is that that [the policy] meant there was not the same level of oversight of their discretion as there might have been, and so while generally speaking we could say that although the practice [of de facto decriminalisation] that was implemented did see a massive decrease in the apprehension and prosecution and convictions of low level cannabis offences, that discretion was not equally applied across the board to all demographics and all parts of the country. There were still significant numbers of people being charged for those offences – and of course they tended to be young, Maori males.”

Quince, who was recently named to an expert advisory group led by Sir Kim Workman which aims to understand unconscious racism in the police force, says racism shoulders some of the blame, but it doesn’t solely explain the gap between the goals of the amendment and the reality on the ground today.

“The overrepresentation and discrimination against Māori is prevalent in every offence category. I think the difference is that this is something relatively minor that we can do something about, and that Parliament has indicated they want to do something about. There’s a clear sign that things should change, and they just haven’t.”

"Just because Parliament has passed legislation, that doesn’t automatically mean that Constable Smith on the ground knows what is required of him."

Khylee Quince

One factor for this inconsistency, says Quince, is the difficulty in translating legislative goals into actionable processes. While Parliament may have meant to pass a different approach into law, Quince questions the education and upskilling provided to police in the bill’s aftermath.

“This is part of the problem of law-making – just because Parliament has passed legislation, that doesn’t automatically mean that Constable Smith on the ground knows what is required of him. The different arms of government and different agencies and decision-makers involved need to all be on the same page in terms of knowledge about the reform, but also to have systems in place to allow it to happen.”

That education takes on a legalistic sense when phrases like “public interest” are introduced, says Quince. Policing suddenly becomes a matter of statutory interpretation – the kind of textual analysis lawyers argue over obsessively in court. Police and the Courts generally operate under prosecution guidelines which require a consideration of public interest in a general sense, but following the amendment, that thinking should have been adapted specifically in relation to lower-level drug offending of the sort that was informally decriminalised in practice.

“What does that look like?” asks Quince. “When is it going to be ‘in the public interest’ to prosecute? I don’t know if that homework was done. To some extent the ‘do not prosecute’ aspect of the amendment is not great law. To say that something is ‘illegal unless we say so’ is a confusing message, and it’s all very messy.”

This ambiguous question of interpretation, which also creates uncertainty and reduced access to justice for those who live under its shadow, was the subject of a fiery 11th hour debate at the third reading of the bill. While New Zealand First secured wording that required police to consider public interest over the personal interest of the accused, then-National Party drug tzar Paula Bennett attempted to have the clause struck out altogether, arguing police were ill-prepared to make judgement calls on drug users, and adding that communities lacked the resources to deal with referrals. “We’re treating them like social workers”.

The public votes on ideas. And one idea that did get across the line was that what we have now isn’t good. The status quo is not working. "

Khylee Quince

In hindsight, Bennett wasn’t far off the mark. According to Quince, while a health based approach is both preferable to punitive measures and ideologically sound, in practical terms the legislation may have been ahead of the system’s ability to enact it.

“I’m not really sure that people knew what they were getting into in terms of health-based responses, and from what I know of the situation after, I don’t really think the ducks were lined up to enable that part of the amendment to really be given life,” she says. “What were they going to send people to, for example?

Quince says there weren’t enough resources or planning in place. “I don’t think… the police who are in charge of that part of the decision making were made aware of best-practice.”

These issues were not unforeseeable. According to Drug Foundation executive director Sarah Helm, the amendment demonstrated “a welcome shift by MPs to move New Zealand further toward treating drugs as a health issue. Even so, we knew it wasn’t the full reform we needed.”

And while there were hopes that a successful cannabis referendum vote would have seen a large chunk of offences removed entirely, the public ultimately rejected the proposed Cannabis Legalisation and Control bill, with Jacinda Ardern stating that her government would not progress legislation contrary to that result.

The failure of the referendum may have provided a powerful opportunity to take a different approach, however. Because while the referendum asked New Zealanders to vote on a specific piece of legislation, Quince says voters tend to vote along more ideological lines. And even amongst those who voted ‘no’, there is support for a system of decriminalisation.

“The public votes on ideas. And one idea that did get across the line was that what we have now isn’t good. The status quo is not working. That begs the question as to whether or not parliament should legislate ahead of the general public, but we need really clear information for the public about what exactly decriminalisation means – we didn’t really get a chance to do that with the referendum because it wasn’t on the table.”

And while Ardern firmly ruled out legalising cannabis, it has been reported the Green Party’s Chloe Swarbrick has begun attempts to secure cross-party support for a decriminalisation

There is no doubt there is public demand and considerable political appetite for real, clear and substantive drug law reform. Many people are holding out hope the green light will be given.

* Banner image credit: NZ Police

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