Hard News by Russell Brown


When drug law gets so complicated we should rip it up and start again

Before, during and since the election that delivered it to power in 2017, the Labour Party has had a go-to slogan on drug policy: that it sees drug use as a health, not a criminal issue. It's an excellent philosophical foundation for drug policy reform. It's the foundation for good policy.

But saying something is not making it real, and Labour in government has struggled to give meaning to its slogan. Its most material action was effectively a rhetorical one: the Prime Minister's announcement that New Zealand would not sign up to President Trump's meaningless and regressive "Call to Action" on drugs. It was a correct and courageous decision, one in line with New Zealand's longtime stance on the world stage.

National Party leader Simon Bridges claimed otherwise, insisting that Trump's declaration was "very much under the auspices of the United Nations." It wasn't. It was an entirely redundant edit of the UNGASS 2016 outcome document. It had no official UN status and it has, predictably, sunk without trace. So we got that one right.

In explaining her government's decision, Ardern said:

"We have a number of challenges that are quite specific to New Zealand and the type of drugs that are present, but also I'm taking a health approach.

"We want to do what works, so we are using a strong evidence-base to do that."

Which, again, sounds very reasonable. But where's the policy? And what's the holdup?  The Prime Minister shed some light on that in an interview with Jack Tame on Breakfast this week.

She acknowledged that reclassifying synthetic cannabinoids under the Misuse of Drugs Act, which her government wants to do so that supply is subject to harsher penalties (the maximum penalty under the Psychoactive Substances Act is currently two years in jail), would also have the unhelpful effect of greatly increasing penalties for possession.

"We see that there are vulnerable people who are using synthetics, and so yes we need to address that side – but we need to find a way that we can decouple it from possession. And that's what taking us a little bit of time to work on."

She also acknowledged that the $200 million in this year's budget for mental health and addiction services was not being seen on the front line and that even given funding for new detox beds in Auckland, her government was in catch-up mode.

Then Tame hauled out a telling statistic from an earlier interview with Drug Foundation director Ross Bell: when synthetics were legally sold and somewhat imperfectly reglated, nobody died from taking them – but 45 to 50 people have died (most of them in the past 18 months) since the Psychoactive Substances Act was amended to ban them:

"So why don't we consider decriminalising them?"

"I don't think that that is necessarily the answer," she responded. 

And here we reach our old friend, the confusion between legalisation and decriminalisation. While it was being debated by Parliament, the Psychoactive Substances Act very nearly did the latter: Labour's Iain Lees-Galloway argued for there to be no penalty for possession or use of an unapproved product. That's what decriminalisation is. But that was a little too liberal for a National government, so the maximum penalty for possession went in as a $500 fine.

The maximum penalty is both trifling and unhelpful. It hampers any attempt to treat synthetics use as a health problem and deliver services appropriately. On one hand, it might as well not be there; on the other, it shouldn't be there. The government could remove it entirely – and make that a first step to decriminalising personal possession of all drugs, as Portugal has.

But what Tame was really asking about was legalisation: returning to a regime where synthetics could be sold under regulation and – largely because dosage could be regulated and it's dose that's killing people now – people didn't die. But that's way harder.

The synthetics currently in the black market (which are largely newer chemicals that were never regulated, and are more dangerous than those that were) have been pre-emptively banned since National's panic amendment foreclosed the act's interim licensing period. It's hard to see how they could meet the act's threshold of posing only "a low risk of harm."

It's possible that we could revisit and declassify some of the more benign synthetic cannabinoids that were banned before the Psychoactive Substances Act, but that would be tricky. The act requires a potential producer of an approved product to stump up for expensive clinical trials, and that is very unlikely to happen. And then there's the showstopping ban on animal testing added as part of the last government's amendment.

So without a major rework, the PSA isn't going to be anyone's friend here. And realistically, restarting retail sale of synthetic cannabinoid products is probably politically impossible. Apart from anything else, it would be difficult to explain why we'd be re-legalising synthetics but going to the bother of a big old referendum on legalising natural cannabis.

So let's focus on not criminalising users, who are supposed to be the victims, after all. That's made much more difficult if the government takes the advice of the Expert Advisory Committee on Drugs and moves synthetics to the Misuse of Drugs Act, as Class A controlled drugs. But that seems to be what they're looking at. Ardern said that the government's view is that "penalising people for possession" doesn't help the problem, but:

"Supply is different for me, and actually a health-based approach does say, well, actually those who are supplying harmful drugs actually do need to be held to account."

That's a lot of "actuallys" – but the real problem is that there's not a tidy bright line between possession and supply, between victims and bad guys. Especially in the case of this kind of drug, which is used by the most marginalised, it's quite possible to have a health problem and engage in low-level social supply to support that habit.

Also, further criminalising supply fails to address the actual reason people are dying: unregulated and unreliable dosage, where synthetic cannabinoids pose a greater risk than most psychoactive drugs, because they're properly dosed at the microgram level. If selling synthetics at the mall isn't a starter, is there some scope for supplying reliably-dosed products as a form of maintenance therapy for users who can't quit? That would require real resourcing of frontline services and quite a degree of political courage.

It would also require legislative change, and change is the real issue here. If the government is to deal with synthetics under the Misuse of Drugs Act and increase penalties for supply without further criminalising users, that's actually quite a significant change to our 43 year-old drug law – and in itself, a welcome one that could be extended to other controlled drugs.

And while we're upgrading one class of drugs on the basis of risk, should we not be looking at downgrading others on the same basis? Does it really make sense for magic mushrooms to be in the same class as drugs that are actually killing people?

At some point, we're going to have to stop fiddling with existing laws and start the whole thing again from scratch. And given that, we might as well start now.


PS: I'm less annoyed by this now I've been through the substance of the interview, but in it, the Prime Minister told Jack Tame: "There are products being sold that are harmful in some cases, of course, you’ve got fly spray on some products." This as TVNZ's follow-up story notes, is bollocks. Fly spray is not what's killing users, assuming it appears at all in these products (which it doesn't). So it was absurd of Ardern's office to insist that: "The Government has received advice from police that household chemicals, including fly spray have been used in the production of synthetics." No, it hasn't. When you make an unhelpful blurt, just correct it rather than doubling down.

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