Feature

The Law Commission has had a look at the Misuse of Drugs Act and says it is about time we reformed our drug laws. Amy Joseph reviews the reccomendations and finds that it’s an uphill battle for proponents of change.

For a few golden years around the turn of the twenty-first century, the hangovers we nursed daily during Orientation were far worse, thanks to the then-legal party drug benzylpiperazine (BZP). New Zealand's love affair with the drug quickly saw us with perhaps the highest use rates of any country, and the national debate around it eventually saw it classified as a Class C controlled drug under the Misuse of Drugs Act. During its roller coaster journey through our nation's hearts and livers, BZP briefly sat in a drug classification schedule all of its own - the restricted substances regime, introduced in 2005 especially for BZP. It slipped through that regime at lightning speed to settle in Class C next to cannabis and barbiturates (see table - Gala, take from http://www.police.govt.nz/service/drugs/faq.html#3), and the restricted substance regime has remained empty ever since.
 
Prompted in part by the problems inherent in finding the place for BZP within our existing drug laws, in 2007 the Labour Government asked the Law Commission to review the Misuse of Drugs Act. Written back in 1975, the current Act is a throwback to the carefree hippie days of pot, psychedelics, and freaked-out squares, man. The freaked-out squares remain, but the Act is dramatically outdated. Our knowledge of the drugs it currently legislates against is much greater, and there are new options like P on our nation's drug menu. Tinkering has been done over the years, but the Law Commission identified that these ad hoc amendments have made the Act difficult to understand and navigate, and decreed a “first principles” review well overdue. 
 
Last month, the Commission released an issues paper, outlining some preliminary proposals on how to update our drug laws to reflect “a modern and evidence-based statute” with the scope to respond to an ever-changing drugs landscape, and to stimulate discussion and feedback from the public. The issues paper accepts that New Zealand is bound by its obligation to international drug conventions, and stresses that all of its proposals have been successfully implemented in other countries that are party to the same conventions. But it argues that the Act is poorly aligned with New Zealand's official drug policy of harm minimisation, and advocates repealing the 1975 Act and starting afresh. 
 
However, as soon as the paper was released, any proposals that would see drug laws relaxed were dismissed out of hand by the National Government before any discussions could even start. 
 
Defining the ‘drug problem’
 
The privileged place of alcohol in New Zealand society demonstrates that our lawmakers can tolerate a huge amount of drug-related harm before banning a psychoactive substance. While there is certainly a lot of disquiet amongst the public about our drinking culture, none but the fiercest tee-totalers would suggest banning it outright. Drug law is theoretically based on stepping in when the harms outweigh the benefits, but how is that tipping point identified - and how do we even define drug harm? 
 
The Law Commission recognises that these are difficult - or even impossible - questions to answer, due to the lack of “robust evidence” about the full range of harms that each illegal drug causes. The issue is further blurred when you add in less direct harms, in particular the harms of drug prohibition – such as the cost to the State of enforcing prohibition, and the harms and costs of other crime associated with the black market. 
 
Even assuming we can satisfactorily identify the harms drugs cause, it does not necessarily follow that harm is in itself justification for legislating against them. Any benefits should also be considered, something which the current Act doesn't really allow a lot of room for. And the potential for harm must be laid next to the value our society places on personal freedom and self-determination. “In our view, regulation to prevent people from harming themselves is justified only in limited circumstances,” the Commission argues. “In the drugs context, we think these circumstances are only to protect the young and those whose mental faculties are impaired.”
 
“Beyond those limited exceptions, we think that regulation of drug use is justified only to prevent harm to others, and where the benefits arising from that reduction in harm outweigh the costs arising from regulation itself.”
 
The Commission also notes that the primary objective of its proposed options is to reduce drug-related harm, rather than to reduce “drug use per se.” 
 
What's a little misuse of drugs between friends? 
 
While the Commission agrees with the international conventions that drug-dealing on a large commercial scale is the most harmful of all drug-related activities, it suggests a very different approach to personal use (see box) and social dealing (aka ‘hooking up your mates’). The Commission proposes abolishing the distinction between sale (a transaction for profit) and supply (a transaction without profit) as separate offences, and instead recommends considering the type of supply in sentencing. It suggests a "presumption against imprisonment" under the following circumstances: 
 
• Small quantities of drugs are involved 
• The offender also used the drugs 
• Supply was to friends or acquaintances 
• It was not motivated by profit.
 
The Commission proposes to extend this presumption against imprisonment to offenders who have “imported, exported, produced, manufactured, or cultivated drugs for his or her own use.”
 
BOX 
Proposed options when a personal use offence is detected:
a) Formal cautioning scheme for all drugs: The police would be able to issue up to three caution notices rather than prosecuting a user. A third caution notice would require an intervention session and an assessment with a view to receiving drug treatment. A user who had exhausted his caution options would be prosecuted. 
b) Infringement offence regime for less serious drugs. The police would issue an infringement notice, which would require the user to pay a fine or possibly attend an education session. Prosecution for a personal use offence would not be possible. 
c) A menu of options. A number of responses would be open to police, from cautions or infringement notices, to referral to drug assessment, to prosecution. 
The Commission also recommends greater use of the Diversion Scheme, extending it beyond its current application (possession or use of a Class C drug, cultivation of cannabis or possession of utensils), and greater use of the court system to provide defendants with assessment and treatment of alcohol or drug abuse or dependence. 
END BOX 
 
Paging Doctor Mary-Jane 
 
In fact, there is one subset of society that the Commission recommends should be able to use a currently restricted drug legally: people who would benefit from medicinal marijuana. While New Zealand's current drug regime allows the use of cannabis-based medicines like Sativex, the Commission recognises that such medicines are expensive if not publicly funded, and may not be effective for all those who would benefit from medical cannabis use.
 
It proposes establishing a scheme that would allow people suffering from "chronic or debilitating illnesses" to use cannabis under medical supervision, "particularly where conventional treatment options have proven ineffective." It suggests that cannabis cultivators could be licensed in the same way as other legitimate dealers in controlled drugs currently used for medicinal purposes. 
 
Evidence-based policy? We don't need no stinkin' evidence-based policy! 
 
Drug law is more often based on emotional reaction and populist point-scoring than evidence, and politics can quickly get in the way of attempts at reform (see box). Justice Minister Simon Power immediately came out swinging against the Commission's recommendations. "There's not a single, solitary chance that as long as I'm the Minister of Justice we'll be relaxing drug laws in New Zealand," he thundered, despite the Commission pointing out that most studies have concluded that "the regulatory approach itself neither increases or decreases drug use." 
 
Prime Minister John Key played good cop, taking a more Helen Lovejoy-esque approach. Not as handy with a sound-bite as Power, he gently rambled into 'Won't someone please think of the children?' territory, cementing his place in the hearts of middle-class mums across the country. 
 
"No one is probably arguing necessarily that if someone uses a small amount of marijuana that that is necessarily of itself the end of the world," he said succinctly. "But, and I have to acknowledge because it’s factually correct that a lot of New Zealanders do, but what's the message we want to send youngsters? And the message is don't engage with drugs." 
 
Key suggested involvement in sports, culture, and drama as alternatives to just saying yes, confirming that he has never in fact met a single musician or thespian. 
 
BOX 
 
Nutt Sacked by British Government
 
Professor David Nutt is one of the UK's leading experts on the effects of drugs, and until October last year chaired the Advisory Council on the Misuse of Drugs (ACMD), where his duties included making scientific recommendations to government ministers on how to classify banned drugs. Nutt found himself in the firing line from politicians after first coining the term "equasy" or "equine addiction syndrome" to illustrate that there was little difference between the harm caused by horse-riding and ecstasy, and that society did not always adequately balance risk. "Making riding illegal would completely prevent all these harms and would be, in practice, very easy to do," he told the Daily Telegraph. "This attitude raises the critical question of why society tolerates - indeed encourages - certain forms of potentially harmful behaviour but not others, such as drug use." 
 
Nutt later gave a lecture in his academic capacity in which he demonstrated that, based on their risk to health, alcohol and tobacco were more harmful than many illegal drugs, including LSD, ecstasy, and cannabis (see graph). Nutt, who had already been outspoken against the political decision to reclassify cannabis from class C to class B against the advice of the ACMD, was promptly fired from the Council for speaking out against policy. His dismissal outraged the scientific community and led to five resignations from the ACMD. Cannabis remains a class B drug in the UK.
 
END BOX
 
Treatment problems
 
Studies estimate that every $1 spent on addiction treatments leads to a $4-7 reduction in the cost associated  with drug-related crimes, but there are not currently sufficient treatment services in New Zealand to meet demand, and the courts are limited in their ability to place offenders in treatment rather than simply punish them. The issues paper recommends that the Mental Health Commission be tasked with developing a blueprint for addiction service delivery for the next five years, and identifies a place for "limited compulsory civil detention and treatment regime containing appropriate safeguards."
"People who are drug dependent are often incapable of making rational decisions over their substance use and personal welfare. Short-term compulsory intervention may get them to a position where they are able to more readily help themselves."
 
Such a regime must be soundly grounded in medical assessment, and should be limited in a number of ways, including:
 
• Detention and involuntary treatment must be a last resort.
 
• Only the minimum degree of intervention necessary to address the risk of harm posed to the detained person should be authorised.
 
• There should be a clear threshold that must be met before a person can be detained for treatment.
 
• The maximum detention period should be 28 days.
 
• The regime should only be available when “no other appropriate and less restrictive means are reasonably available for dealing with the person.”
 
 
Restriction vs. Prohibition
 
Currently, new psychoactive substances that are not covered by international conventions can be marketed and used without restriction until they are proven harmful and are prohibited. On one hand, this means that it is currently easier to sell a new psychoactive substance in New Zealand than a new food product. On the other hand, it means that if a substance does need to be regulated, the only real option is to prohibit it - the ‘all-or-nothing’ approach. The Commission proposes a new approach to replace the flawed - and unused - restricted substances regime that would require prior approval to manufacture, produce, or import a new psychoactive substance. This would provide a variety of regulatory options including restrictions on age, sales outlets, and advertising, with prohibition as "the last resort."
 
The Commission also proposes revamping the body that makes classification decisions for prohibited drugs, favouring a panel of scientific and medical experts like the Expert Advisory Committee on Drugs, and far greater transparency and public participation in the classification process.
 
There is much that is positive in the recommendations that the Law Commission has already put on  the table. Unfortunately, John Key and Simon Power seem keen to sweep them swiftly off and back under the carpet.
 
Talking smack (and other drugs)
 
There Commission poses various questions in both the 400-plus page issues paper and the more streamlined summary, both of which are available at www.lawcom.govt.nz. Submissions on those questions and any other discussion are welcomed at www.talklaw.co.nz, or Drugs Review submissions, Law Commission, PO Box 2590, Wellington 6140. The closing date for submissions is Friday 30 April 2010.