A halfway house is a place to stop midway on a journey. In the context of drug law reform, “decriminalisation” is such a midway point, being the place that sits between prohibition at one end of the drug law spectrum and full legalisation at the other. This week, data released to the New Zealand Herald confirmed that the attempt to formalise decriminalisation in 2019 has had little impact on the rates of charging for low level cannabis offences, arguably defeating the purpose of the amendment, hailed by its sponsor Chloe Swarbrick as the “most transformational change to our drug law in this country in over 30 years”.
The amendment states that unless prosecution for personal drug use or possession is in the public interest, consideration should be given to whether a health approach is more beneficial. The Herald investigation confirmed that between August 2019 and March 2020, police have charged 2800 people for drug use and possession, at roughly the same rate as prior to the amendment. Only 12 percent of apprehensions were referred to a health service. Around 40 percent of the 2800 are Māori.
So what does this mean, and how should it influence your choice in the impending referendum in September?
To recap the current situation – the Misuse of Drugs Act 1975 schedules cannabis as a prohibited substance in New Zealand. This means that formally speaking, cannabis remains illegal – you can’t grow it, smoke it, possess it or sell it, in any amount or form, anywhere.
The only legal exception to that is the medicinal cannabis scheme that came into effect in April of this year, which provides for limited access to regulated cannabis products on prescription from a doctor. Currently, Sativex is the only approved product that can be prescribed without approval of the Minister of Health, and it costs users around $1400 per month. Potential users cite the prohibitive cost of approved ‘medicinal’ products, as well as the reluctance of doctors to prescribe, as barriers to accessing cannabis for therapeutic use and pain relief. This means that those who use (and grow or supply) non-prescribed cannabis for such purposes are breaking the law, and continue to risk prosecution and conviction for doing so.
While the law continues to formally prohibit cannabis outside of the limited medicinal scheme, for more than two decades the police have chosen to turn a blind eye to much low-level cannabis use and possession. This has seen prosecution and conviction rates for these offences plummet since the mid 1990s, with a 70 percent drop since 2009.
What this means in reality is that the majority of people found with a small amount of cannabis are not dragged into the criminal justice system. They are not charged, convicted or subject to punishment – including the shame of a criminal conviction, which needs to be disclosed in job applications, and can restrict opportunities in travel and public life. This policy was a de facto form of decriminalisation – the halfway house between cannabis being unlawful and lawful.
While that discretion used by the police has had a significant effect for most low-level cannabis users who have come to their attention, that discretion has not been used in favour of all population groups equally. Specifically, Māori, and young males are those who continue to be charged and convicted of possession and use of cannabis, despite the two decade policy of turning a blind eye to the law. In 2018, eight people were jailed solely for cannabis possession.
In addition to the criticism that the police have applied their informal policy of decriminalisation in a racist, discriminatory fashion, there is a bigger rule of law point to be made here. The police are not the makers of law in our legal system – they are the enforcement arm. The police have an appropriately limited role to use their discretion in any given case as to whether charges are justified in the public interest.
This should not extend however to a general policy that the law does not apply or should be ignored, except in a few instances where the transgressors are predominantly young, male, Māori. Parliament makes the law, and they have chosen not to repeal or amend the Misuse of Drugs Act in any significant way for 45 years.
Legalisation would give clarity as to the status of cannabis. No one could be charged, convicted or imprisoned for use or possession per se. Police could not use suspicion of cannabis use or possession to justify wider search, seizure or surveillance activities. This does not mean that people whose performance at work or driving is impaired would be off scot-free however, as employment contracts and traffic law will determine those boundaries – as they currently do in relation to abuse of alcohol.
The halfway house approach leads to a murky situation that is not constitutionally defensible. This can lead to abuse of police power and discretion that is notoriously difficult to pin down and question. The police data on decriminalisation has been exposed as a strategy that lacks courage and sees us bury our heads in the sand rather than make a clear choice between prohibition and legalisation. We need to make a clear choice at the referendum – to paraphrase Yoda, “Do or do not, there is no try”.
