Hard News by Russell Brown


Stop acting like the law is someone else's responsibility

On Morning Report today, Prime Minister John Key was interviewed about a new poll indicating that nearly two thirds of New Zealanders want the law reformed to legalise or decriminalise use and possession of small quantities of cannabis.

Mr Key declared himself "not a massive fan" of these things.

"One of the things that Parliament does is send a message to people about activity we want to see or not want to see and um in the4 case of drugs I think if we were as parliament to decriminlaise then one of the messages we'd be sending is that increased drug use is okay.

"And I know that people would say, we, you know, that seems a bit silly given that there's widespread recreational use and we know that. But I don't think the police really for the most part do prosecute in this case."

Actually, the police are still arresting about 15,000 people a year for personal use and possession of cannabis. Not all those arrests lead to prosecutions, of course, and I do think it's true that – as Cam Price argued last year –  that in recent years New Zealand police have, whatever the law says, been applying a form of de facto decriminalisation.

Graeme Edgeler put it to me on Twitter this morning that Key was applauded for emphasising that the police would apply their discretion when the Section 59 "reasonable force" defence for child discipline was removed – so why scorn him for saying the same about drug law? And why is one "message" law, passed on the understanding that it would not lead to prosecution in every case, a good thing, when another is not? He wasn't just trolling: it's a reasonable philosphical question.

The presence of a victim in one case and not the other provides a fairly obvious point of difference. But there's also the  matter of the sheer number of cases,  the consequences of of a conviction – and the fact that police discretion is not appplied without bias: one study found that Māori experience police arrest for cannabis use at three times the rate of non-Māori.

Also, the removal of Section 59 – and thus the special status of hitting children as opposed to anyone else – brought the law in line with overall government policy. The continued refusal to countenance any reform of of the Misuse of Drugs Act 1975, on the other and, has created a growing gulf between the law and the government's own National Drug Drug Policy, which is all about "proportional" responses founded in public health health principles and not criminal law. I honestly can't think of a law so obviously antithetical to the government's stated policy goals.

The Law Commission took a similar view in its review of drug regulation in 2010, and suggested various reforms, including ways in which police discretion could be guided. As Sir Geoffrey Palmer put it when the commission's review was published: 

There may be a case for taking more flexible approaches to offences involving possession of small quantities of drugs for personal use.

The review was not only summarily rejected by the government at the time, it had the paradoxical effect of John Key's government establishing and campaigning on the position that it would never change drug law.

The new poll is even more emphatic on medical cannabis. Sixty six per cent of respondents believed that "growing or using cannabis for pain relief if you have a terminal illness" should be legalised and a further 16% thought it should be decriminalised. Only 15% believed it should remain illegal. There was only slightly less support when the question was refined to the simple use of cannabis for pain relief.

No problem, says the Prime Minister.

"The truth is that the police don't prosecute people in that [indistict]."

Well, firstly, he doesn't know that. Secondly, it's not true – a number of people convicted as a result of last summer's expensive but newsworthy cannabis recovery operation identified themselves as medical cannabis users.

And thirdly, a leader who has just hailed the role of Parliament shouldn't be in the next breath handing over the content of the law to police. Key suggested more than once in the interview that police don't often prosecute for cannabis use and possession, that "in a lot of cases the police turn a blind eye to this".

So should, Guyon Espiner asked him, possession of a small amount of cannabis in general result in a criminal conviction?

"People break the law all the time. I mean technically, when people go 15km/h in a 50km/h speed zone, you're breaking the law. So there are always tolerances and margins. It's for the police to determine that."

It really isn't. The police have, it is true, taken a number of influential steps in the past decade – from the pre-charge warning system to Prime Ministerially-endorsed "turning a blind eye" – but it's probably past the point of of it being ultra vires. If such a level of discretion is in fact desirable, then it should be in the law.

The New Zealand Law Commission took a similar view in 2010, proposing a formal system of warnings. Its review also has a thoughtful section on medical cannabis, which acknowledges the widespread view of health sector submitters that for cannabis to be formally approved as a medicine it should have to pass the same tests other other medicines and be standardised and subject to trials.

But it also acknowledges the strong belief of other submitters that the use of raw cannabis manages their pain or other symptoms effectively and with fewer side effects than the standardised medicines that have been approved for their use, and therefore:

... we think that the proper moral position is to promote clinical trials as soon as practicable. We recommend this approach to the Government. 

And in the meantime:

... while trials are being conducted, we think that it would be appropriate for the police to adopt a policy of non-prosecution in cases where they are satisfied that cannabis use is directed towards pain relief or managing the symptoms of chronic or debilitating illness.

That sentence has since widely been interpreted as a call for a "moratorium" on medical cannabis prosecutions at least until there are standardised cannabis-based medicines available. That's actually a sensible and ethical thing to do. But it is not something the police should be expected to do independently of government. It's not even desirable. Lawmakers need to stop acting as if the law is someone else's responsibility.


The interesting thing about the poll is that it was commissioned by the Drug Foundation from Curia Research – David Farrar's company, the firm whose monitoring of the public mood has helped deliver the National Party successve election victories. That's not surprising: Curia's rate for having a question or questions added to its regular polling is quite reasonable.

But I've remarked in the past that law reform would appear on the horizon when a Curia poll showed that the people National relies on for votes favoured it. Well, guess what? That actually happened.

When responses are divided by "Probed Party Vote", National voters are still markedly more prohibitionist than supporters of any other party: 42% wanted possession of even a small amount of cannabis to remain a criminal offence,  versus 29% of Labour voters, 33% of Maori Party voters, 0% of Act voters, 35% of New Zealand First voters and 15% of apparently confused Green Party voters.

But a majority of National voters support law reform in the poll: 28% are in favour of legalisation and 27% decriminalisation.

I suppose it's possible that in taking any action National could risk losing voters, but it's hard to see where they'd go. The political risks of cannabis law reform look to have sharply decreased – and if Key's government hadn't spent the years since 2010 campaigning on never, ever changing the law we'd probably be seeing that happening now. But positions that aren't based on evidential or philosophical foundations are easier to abandon than considered positions. So yes, that might be something peeking over the horizon ...

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