Analysis: The Health Select Committee has failed to agree on the future of the most significant piece of drug reform since the 1970s. Laura Walters reports.
A war of words is raging over the war on drugs, as the Health Select Committee reports back on the most significant piece of drug reform legislation in 40 years.
The parties are divided over a single, but significant, clause in the Misuse of Drugs Amendment Bill, which enshrines police discretion over prosecution, and prioritises therapeutic options when dealing with possession and personal use of controlled drugs.
It is the same approach Portugal took when changing its drug laws in 2001.
In recent months, there has been a back and forth between National, Labour and the Green Party over whether the proposed legislation will effectively decriminalise drugs.
Labour, including the Prime Minister and the Health Minister, have pushed back on National’s categorisation that this bill creates “de facto decriminalisation by stealth”, saying it doesn’t take away the power to prosecute, and police would do so when needed.
Instead, Labour and New Zealand First have been trying to draw attention to the tougher measures against suppliers of synthetics that the bill contains.
When Health Minister David Clark and Police Minister Stuart Nash announced the draft legislation in December, the press release boasted the headline: “Crackdown on synthetic drug dealers”.
There is a disconnect between the Government’s messaging around the bill, the actual effects of the legislation, and what the Government signed up to in both its confidence and supply agreement with the Green Party, and its commitments following the national Mental Health and Addiction Inquiry.
Select Committee Divided
The National members of the health committee have produced a minority report on the bill, opposing what the party refers to as the de facto decriminalisation.
National said it supported the intent of the majority of the bill, including the ability to temporarily classify substances as controlled drugs and classify the two most prevalent chemicals used in synthetics as Class A drugs.
However, the party’s opposition to de facto decriminalisation, through the discretion clause, means National refused to support the bill overall.
“I don’t think there’s anything stealthy about a bill going through the entire select committee process and having submitters on it who are saying, quite explicitly, what the effect of it will be.”
The Labour and New Zealand First members recommended one minor and technical change to the discretion clause, leaving the majority of the bill, and its intent, intact.
The significant clause stated police officers have a discretion to prosecute, and a prosecution should not be brought unless it was required in the public interest.
“When considering whether a prosecution is required in the public interest, in addition to any other relevant matters, consideration should be given to whether a health-centred or therapeutic approach would be more beneficial,” it says.
Police would create their own operational prosecution guidelines in relation to the bill, and data collection procedures.
National Party health spokesperson Michael Woodhouse sits on the health committee and was there when the NZ Drug Foundation, Police Association, psychiatrists and lawyers agreed the bill would essentially decriminalise personal possession and use – regardless of what the Prime Minister says.
In his submission to the committee, Police Association head Chris Cahill referred to it as “compulsory discretion”.
Meanwhile, Rotorua lawyer Chris Macklin, representing the Law Society, said he could not think of a single case where police could argue they should prosecute someone for possession of a drug for personal use, under proposed legislation.
No-one who came before the select committee said there could be a case made for a criminal prosecution over a therapeutic approach – regardless of what services were available, Woodhouse said.
If the Government was decriminalising the use of controlled substances, which included meth, synthetics and heroin, there needed to be a wider public debate, rather than slipping it through in this piece of legislation, he said.
Living up to the rhetoric
But the person behind the discretion clause – Green drug reform spokesperson Chlöe Swarbrick – said the Government wasn’t being secretive about its commitment to effectively decriminalise personal use and possession.
“I don’t think there’s anything stealthy about a bill going through the entire select committee process and having submitters on it who are saying, quite explicitly, what the effect of it will be.”
More than that, the Government has made numerous, high-level public commitments to stop criminalising drug users and drug addicts.
Jacinda Ardern stood on the world stage, during UN leaders’ week last year, and refused to sign up to Donald Trump’s war on drugs action plan.
The Prime Minister said New Zealand would take a health-based approach to drugs, rooted in evidence.
This is a key Government commitment under the Labour-Green Party confidence and supply agreement, where the parties vow to “increase funding for alcohol and drug addiction services and ensure drug use is treated as a health issue”.
“We simply, genuinely, could not have the inconsistency of our Prime Minister going over to the UN and saying we would not sign up to the war on drugs, then simultaneously continuing to criminalise people. Let alone ratcheting up penalties.
“So I see this as us actually living up to the rhetoric.”
This is often overlooked, as it is contained in the same clause where the parties agree to have a referendum on legalising the personal use of cannabis at, or by, the 2020 general election.
The Government also accepted 38 out of 40 recommendations of the Mental Health and Addiction Inquiry, including: replacing criminal sanctions for the possession for personal use of controlled drugs with civil responses, such as a referral to a drug awareness or treatment programme, or a fine; and committing to support the replacement of criminal sanctions with a full range of treatment and detox services.
Despite those high-level commitments, it wasn’t easy for Swarbrick to convince Cabinet to move from a criminal approach to a therapeutic approach, due to the political realities everyone was in.
“I’m on record multiple times saying politicians are some of the most risk averse people that I’ve ever met,” she said.
In the end, Cabinet agreed to stop penalising those “caught in the web of addiction”.
“We simply, genuinely, could not have the inconsistency of our Prime Minister going over to the UN and saying we would not sign up to the war on drugs, then simultaneously continuing to criminalise people. Let alone ratcheting up penalties.
“So I see this as us actually living up to the rhetoric.”
Shadow-boxing for too long
A full reform of New Zealand drug law, including repealing and replacing the act with a law administered by the Ministry of Health, was also recommended by the Law Commission in 2011 – a position the Green Party also holds.
While there was yet no official commitment to repeal and replace the Misuse of Drugs Act, there had been substantive discussions between Government parties.
In the meantime, the Misuse of Drugs Amendment Bill was a significant step towards that health-centred approach.
The change would put New Zealand in line with Portugal’s decriminalisation approach, introduced in 2001. The only difference is New Zealand did not have Portugal’s Dissuasion Commission.
“This is huge. This is the largest change we’ve seen to drug law in this country, actually in Australasia, in over 40 years,” Swarbrick said.
“But because of awful politics, it’s not picked up.”
The Green Party has been clear and consistent in its position against criminal sanctions for drug users. But all parliamentarians started from a place of wanting to protect communities, protect kids, and reduce the harmful effects of drugs, Swarbrick said.
“We’re stuck in a very ineffectual back and forth of unnecessary political point-scoring for sake of baseless rhetoric.”
While no-one would say it, Te Ara Oranga– the Northland meth demand reduction programme started under National – was essentially decriminalising meth use in the north.
MPs across different parties wanted to try new approaches in order to reduce drug harm, and Swarbrick said she would continue to invite National to join her cross-party group on drug harm reduction – something she had been doing for about a year.
“Unfortunately, what is happening is that moral panic, and strongman, ironically strawman arguments keep popping up…
“We’re stuck in a very ineffectual back and forth of unnecessary political point-scoring for sake of baseless rhetoric.”
In order to make a difference, the country had to stop peddling the war on drugs, increasing penalties, “and just shadow boxing and not making a slight dent in the problem”.
Doing the same thing the country had done for the past 40, would lead to the same results, she said.
Health Minister David Clark was not available to comment on the bill, as he had not yet read the select committee report when contacted by Newsroom on Friday. The committee reported back on July 1.
