Hard News by Russell Brown


A law gone awry

The Psychoactive Substances Amendment Bill, having been rushed through all its stages last night, will receive Royal Assent today and from midnight it will be illegal to manufacture, sell or possess any psychoactive substance apart from those that most people use. To say that New Zealand's visionary legislation has gone awry is to considerably understate the case.

In one sense, the amendment bill is actually only a change to the process of the Psychoactive Substances Act. These products -- both those on the interim approvals list and those yet to come -- were due to be withdrawn from the market next year anyway, assuming the Ministry of Health ever got its regulations published.

But there's a much bigger change stashed in the bill in the new Section 12, establishing the ban on animal testing as any part of a formal approval process -- a move for which the government, the Labour Party, the Green Party and John Banks are all jostling to claim credit. And the second part of that section includes a provision that defies reason:

Advisory committee not to have regard to results of trials involving animals
“(1)In performing the function set out in section 11(2)(a), the advisory committee must not have regard to the results of a trial that involves the use of an animal.
“(2)However, the advisory committee may have regard to the results of a trial undertaken overseas that involves the use of an animal if the advisory committee considers that the trial shows that the psychoactive product would pose more than a low risk of harm to individuals using the product.”

So the advisory committee may consider overseas animal trials that indicate a product is risky, but is required to ignore such trials that indicate a product is low-risk. Again: it's a law that requires public officials to ignore evidence if the evidence points in the "wrong" direction.

The amendment bill has been passed in the name of people who have fallen victim to synthetic cannabinoids -- and in particular those who have become addicted to these products. But last night Health minister Tony Ryall's only message for those people was basically "fuck you". He didn't offer help and support, he threatened prosecution.

One mercy is that the relatively light penalties for personal use and possession in the Act stand. No one can go to jail for possessing an illegal psychoactive that's not separately dealt with in the Misuse of Drugs Act -- the maximum penalty is a $500 fine. It's a shame that Labour's Iain Lees-Galloway failed in his two attempts last year to secure a zero penalty for possession in the Act, which would effectively have been a decriminalisation. If you really are legislating for welfare, as opposed to mere political advantage, that's what you would do.

So what went wrong? Quite a few things. The first is that by the time the Psychoactive Substances Act became law last July, the market was flooded with synthetic cannabis products. Until then, they were so widely available that the problems of the small but significant group of users who were suffering serious harms were invisible to the rest of us. When the number of retail outlets was slashed, they suddenly became very, very visible.

I don't want to downplay this. Even by the historical standards of Karangahape Road, synthetic cannabis has had an impact on the street in the last eight months. Day and night, you could see people sitting under blankets in doorways, using makeshift beer-can pipes. It made for a weird vibe and, according to friends of mine who live in the area, sometimes a threatening one.

Comparisons with the way Colorado has legalised marijuana are instructive. At one level, the respective laws are quite similar. But Colorado has banned public pot-smoking (although a laissez-faire approach applies to events in parks) and tightly regulates retail outlets. In New Zealand , we could have demanded at least the duty of care expected of a licensed liquor outlet. We didn't do that. I think Matt Bowden's proposal to require a clinician to be present wasn't a bad idea either.

To some extent that's the fault of local authorities who demanded regulatory powers, but largely it's the fault of a massive hole in the government's approach to the law and the modern Ministry of Health's operational impotence. What happened at retail should have been a key focus and it simply wasn't.

But perhaps the biggest problem was the synthetic  cannabinoids themselves. Given what we know now, no one would have chosen them as first candidates for regulated sale -- indeed, they'd probably have failed the test (several were withdrawn by the Psychoactive Substances Authority in the two weeks after Peter Dunne announced they'd all be banned)  -- but they were already endemic when the law was passed, filling the niche of natural cannabis.

The consequence has been harm to the purpose of the law itself and, from midnight, a legal situation that is an affront to personal liberty.

Campbell Live, which has done tremendous work on this story, scored a final coup last night: a rare interview with Professor John W. Huffman, who synthesised the first synthetic cannabinoids, starting with JWH 018. Huffman was emphatic: these product should be prohibited from sale. But, he said, that would not prevent them from being sold or consumed:

"My advice to your government -- go ahead and crack down on the people who are getting the imports from China. And then go ahead and make cannabis legal. I'm convinced that that's the only way that you will deter people from using these dangerous synthetic compounds, which were never, ever designed for human use."

Huffman is hardly alone in this view. In the past 15 years, two New Zealand Parliamentary select committee enquiries and a Law Commission review have recommended a change in the legal status of cannabis. Literally every time we seriously examine the arguments, that is the conclusion. I am not now feeling particularly hopeful about the forthcoming reboot of the Misuse of Drugs Act.

Every time, the conclusion is quashed, not on the basis of evidence, but for the sake of politics. And this time, in election year, the politicians have even managed to ban the use of evidence itself.


In 2012, a man was attacked and viciously beaten, permanently injuring his brain and destroying his life and that of his family. It happened outside one of my suburb's legal high outlets -- a bottlestore. I don't want to prohibit the sale of alcohol -- I like a drink as much as the next person and we have a pretty good historical case study on the prohibition of alcohol to look at -- but it might be useful to substitute "alcohol" with "any other psychoactive substance" and imagine the conversation we'd be having now.

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