Calling for submissions on the Misuse of Drugs Amendment Bill

MPs are considering a really important piece of legislation which will bring New Zealand closer to treating drug use as a health issue. Anyone can submit on proposed changes to the Misuse of Drugs Act (1975) - but you'll need to act fast.

The Drug Foundation is urging New Zealanders to make a submission on the upcoming Misuse of Drugs Amendment Bill. Synthetics have been linked to more than 65 deaths since mid-2017 – so this is a really important piece of law to get right.

The proposed changes don't go as far as recommended by the Law Commission back in 2011 and the Mental Health and Addictions Inquiry last November - but it's a start. We will continue to advocate for comprehensive drug law reform.

Unfortunately, timeframes are very tight. Written submissions are due on Thursday 11 April 2019 and can be submitted online.

This bill proposes:

1. To reclassify AMB-FUBINACA and 5F-ADB as Class A drugs
2. To affirm that Police should in most cases exercise their discretion not to prosecute those caught in possession of any drug for personal use (not just synthetics).  Police must consider whether a prosecution is required in the public interest, and whether a health-centred or therapeutic approach would be more beneficial.
3. To introduce a temporary drug class order so new harmful drugs can quickly be classified in the Misuse of Drugs Act as they reach the market.

Here are our initial thoughts on the Bill, in case you need inspiration for your own submission:

The reclassification of AMB-FUBINACA and 5F-ADB as Class A drugs

Currently, AMB-FUBINACA and 5F-ADB fall under the Psychoactive Substances Act so carry very low penalties. Reclassifying them as Class A drugs under the Misuse of Drugs Act (MoDA) will increase the penalties that apply for use, manufacture and supply (up to life imprisonment for supply, and a $1000 fine and 6 months imprisonment for possession and use).

• Reclassifying these dangerous drugs fits the ‘logic’ of our current, inadequate drug law. The Psychoactive Substances Act is supposed to regulate the supply of low-harm drugs, and the Misuse of Drugs Act is supposed to cover dangerous drugs. It therefore makes sense to bring these dangerous synthetics under the Misuse of Drugs Act.
• The Police feel strongly that they need the extra search and seizure powers that the Misuse of Drugs Act gives in order to deal with these drugs in the community.
• However, reclassifying synthetics to provide greater penalties may well have negative flow-on effects for people who use these drugs. They may face more stigma, finding it harder to access treatment. If they turn to dealing to support their use, they could face jail time.  
• In summary, while we see this reclassification as inevitable under our current legislation, it really highlights the inadequacies of the Misuse of Drugs Act. MoDA doesn’t effectively help people who struggle with their drug use, and it can’t keep on top of a drug market that is constantly changing. We will be using our submission to  remind officials that we need a complete overhaul of MoDA and a coherent system that works for all drugs.

Discretion around prosecutions for use and possession of all drugs

The Bill requires that Police use their discretion when they find someone in possession of any drug for personal use (not just synthetics).  The Police should only prosecute if it is in the public interest to do so. The effect of these proposals would be to move us from a presumption of prosecution to a presumption of non-prosecution.  Best of all, when considering whether a prosecution is required in the public interest, consideration should be given to whether a health-centred or therapeutic approach would be more beneficial.

• We see this as a great first step towards treating drug use as a health and social issue, rather than a criminal one. The result should be that fewer people are convicted for low level drug offences.
• This part of the new Bill will go some way towards reducing the harm caused to people who use synthetics who may now be caught up in the Misuse of Drugs Act.
• It will also help the thousands of other people who face penalties for use and possession of drugs or drug utensils every year in NZ.
• However it won’t help those who deal to support their own addiction. If they are caught with more than 56g on their person, it will be presumed that they are in possession for the purposes of supply, which carries high penalties under the Act. This once again highlights the need to overhaul MoDA and start from scratch with a compassionate, health-based law.
• We are also concerned that leaving discretion in the hands of Police will mean continued over-represention of Māori in conviction and imprisonment rates. In the long run, we need a system that will avoid the use of discretion altogether and provide a health model for all.

The new temporary drug class means new synthetic drugs can be classified much faster

• This will help the Misuse of Drugs Act work as it was intended to work. Dangerous drugs were intended to be classified under MoDA and lower harm substances were intended to be regulated under the Psychoactive Substances Act. This system hasn’t worked smoothly because of the time it currently takes to reclassify new drugs under MoDA. As an added complication, the type of drugs available in NZ is changing. There are many more types of substance available than even five years ago, and some of these are highly potent.
• Again, we agree with the logic of this amendment within our current system.
• But even after the law change, dangerous new drugs hitting our market will need to be individually classified. Those that haven’t been yet will continue to fall under the Psychoactive Substances Act. Manufacturers have an incentive to keep changing their recipes to get past the higher penalties of MoDA, making drugs more dangerous.
• Again, what we need is a completely updated new Act that is fit for purpose given the realities of emerging drug markets.

To help with submissions we have created a guide that gives some tips on written and oral submissions - you can download it here (PDF, 1.5 MB).