A careful revolution
The Government’s long-term drug reform policy has been kept under the radar but it is possible to discern what its shape might be, reports Derek Cheng
The Government has quietly ordered a review of its 44-year-old drug law, which will anchor its health-based response to drug use and form part of its long-term response to the synthetic drugs crisis.
The scope and timeframe of that review is still being considered, but organisations across the drug treatment sector have been calling for a review of the Misuse of Drugs Act (MODA) for years.
The Psychoactive Substances Act, set up to tackle the increasing use of synthetic drugs, is also seen as a failure and in need of an overhaul.
The MODA was already considered out of date in 2011, when the Law Commission released a comprehensive 350-page report that said it was no longer fit for purpose, and poorly aligned with the Government’s National Drug Policy.
“Its main components were developed in the 1970s, when the ‘hippie’ counterculture was at its height and the illegal drugs of choice were cannabis, cocaine, opiates and psychedelics like LSD,” the commission’s report said.
It recommended a repeal and replacement of the law with a healthbased model to be administered by the Ministry of Health.
The previous government largely ignored the commission’s review, but a new review has now been ordered in the face of the synthetics drugs
crisis, which has contributed to 80 deaths during the past two years.
Asked about the review, Health Minister David Clark would only say that no formal review had been announced.
There are only a few non-redacted references to a review in hundreds of pages of documents released to the Herald under the Official Information Act about the Government’s drug law reforms.
They refer to a planned or expected review, the scope of which is yet to be determined.
The reluctance to announce it is an indication of how emotive and politically sensitive drug issues are.
Politicians are wary of any policy that might scare voters, especially when the Government has already moved on medicinal cannabis, a referendum on recreational cannabis, and a law change that would mean police would only criminalise drug users if a therapeutic approach was a worse option.
The Law Commission’s report on the MODA
The report said the law was focused too much on drug supply and not enough on reducing harm and demand.
“There are adverse social consequences from a distinctly punitive approach to lower-level offending. Quite large numbers of young New Zealanders receive criminal convictions — which might subsist for life — as a result of minor drug offences. This is a disproportionate response to the harm those offences cause.”
The report said current drug classifications were “anomalous” and no longer reflected modern scientific evidence about drug harm.
This is backed up by the Ministry of Health’s drug harm index in 2016, which referred to a 2010 paper about harm to users and to others.
The research, published in medical journal The Lancet, was led by Professor David Nutt and found that alcohol, heroin, cocaine and methamphetamine were the most harmful, and LSD and mushrooms were the least harmful.
The 2017 Global Drug Survey said alcohol led to more per capita emergency treatment than LSD, magic mushrooms, MDMA or cannabis.
LSD and psilocybin (the active ingredient in magic mushrooms) remain Class A drugs and carry the most severe criminal penalties, while MDMA is Class B.
In its report, the Law Commission also wanted to scrap the list of drug weights that, if found by police, would lead to a presumption of supply.
The default weight, 56g, has raised concerns that heavy users of drugs could be charged as dealers.
Instead, the report recommended a new offence of aggravated possession, with jail terms for commercial dealers but not for heavy drug users or those caught with small amounts for “social” dealing.
It also recommended mandatory cautioning for any illegal drug use. Police would caution a drug user, and a final caution would require the user to attend a health intervention or face prosecution. The number of cautions would depend on the drug.
The lack of discretion would mitigate concerns of unconscious bias from police.
The report did not support decriminalising or legalising drug use, but that might not be the case if the commission did a review today.
The 2011 report was written when legalisation of any drug was off the table, according to Dr Warren Young, the commission’s deputy president at the time and now general manager of the Independent Police Conduct Authority.
“The world has changed,” Young told the Herald.
“Now it’s a much more open question the extent to which criminalisation is the right response, in the least towards possession offences.
“If you want to say the focus is on taking a health approach rather than a criminal and law enforcement approach, it’s somewhat inconsistent to treat every possession and use offence as a criminal offence.”
What a new MODA review might consider
Young said a criminal justice approach impeded a health and education approach.
“Treating everything as unlawful, the starting point in education is that all use is harmful, full stop.
“There is a debate that ought to be had about the extent to which mere possession of drugs ought to be legalised, and for what sorts.”
That may or may not be politically agreeable, but the Government is receiving plenty of advice that treating drug users as criminals is not working.
The Safe and Effective Justice Advisory Group, in a report last month, noted widespread frustration that drug use was still treated as criminal offending. It will make recommendations to the Government in August.
The Government inquiry into mental health and addiction went as far as recommending replacing criminal penalties with civil ones such as fines, as has happened in Portugal.
“The criminalisation of illicit drugs poses a barrier to seeking help, and convictions for personal drug use have far-reaching consequences on people’s lives,” the inquiry’s report said.
The Government’s official response to this recommendation is that it needs “further consideration”.
However, according to numerous official documents, the Government doesn’t want to criminalise drug users, and agencies even considered having no criminal penalties for users of synthetic drugs.
This was ultimately discarded because of fears that people would opt for synthetics over less harmful drugs that could get them jailed if caught.
Drug Foundation executive director Ross Bell said this perverse incentive could be eliminated if all drug use was decriminalised, but Government ministers have not shown any appetite for that.
They have also pushed back strongly against any suggestion the Misuse of Drugs Amendment Bill, an interim step which is expected to have its second reading in the House today, is de facto decriminalisation.
The Law Commission’s report included other recommendations, such as a new offence to ensure that administering a drug to another person wasn’t treated as a dealing offence, and making it legal to possess a pipe or utensils.
“We are not aware of any evidence that existence of the [pipe and utensils] offence itself deters drug use . . . To the extent that the offence deters safer drug use, it causes harm rather than prevents it,” the report said.
Young said all the recommendations from the 2011 report were still relevant today.
Still a synthetic drugs crisis
The MODA review is also expected to form part of the long-term plan to tackle the synthetic drugs crisis.
A Ministry of Health review of the Psychoactive Substances Act (PSA) found that it could not work as intended unless a ban on animal testing was removed, which effectively made it impossible to prove whether a product was less harmful and potentially pave the way for it to be legalised.
The subsequent black market led to cheaper, more dangerous synthetic drugs that have contributed to 80 deaths in the past two years.
The ministry’s review said there might be alternative testing regimes including in vitro, using human cells and tissues, or computer modelling.
“I cannot understand why in this day and age we have not been able to develop computer models to simulate the animal tests,” said Peter Dunne, who was Associate Health Minister when the PSA was introduced.
“I moved that the animal-testing ban be introduced, so I don’t think it’s politically feasible to get rid of it. But I don’t accept that that means you can’t develop alternative testing that can give you the same certainty.”
Bell said that a legal, regulated market, as the Law Commission had intended with the PSA, would encourage people to move away from more harmful, unregulated substances.
He pointed to the BZP (benzylpiperazine) legal highs industry that started about 15 years ago.
“Within two years, a quarter of the adult population had tried BZP. People were willing to purchase drugs on the legal market.”
Political consensus is required for enduring reform of drug laws, and legalising is often seen as politically unpalatable. There is no indication whether a review of the MODA is expected this parliamentary term.