Earlier this week, the Law Commission released its final report on Controlling and Regulating Drugs. Green Co-Leader Metiria Tūrei issued a media release supporting the Commission’s report at the time, but I thought I’d provide a bit more information about it here. The report is a weighty tome – 350 pages, including 144 recommendations, so I can only highlight a few of the key recommendations:
The Misuse of Drugs Act 1975 should be repealed and replaced by a new Act, which should be administered by the Ministry of Health.
This makes sense. The current Act is a shambles. It is 35 years old, has been amended countless times, and directs resources into criminalising drug users. More emphasis on treating drug abuse and dependency as a health and social issue, rather than a criminal one, should be welcomed.
There should be a statutory presumption against imprisonment in cases of social dealing.
The presumption should apply to all dealing offences and all drug classes, but should not apply when the dealing is to a person under the age of 18 years.
It is ridiculous that someone can be sent to prison for giving or selling a joint to a friend out the back of the pub. Imprisonment should be reserved for those who seek to make a profit out of dealing in controlled drugs, or who deal to minors.
There should be a new regime with its own criteria and approval process for regulating new psychoactive substances.
The chemists are always going to several steps ahead of the regulators, so this makes sense too. The potential of a new recreational drug to cause harm should be assessed before it goes on the market, and appropriate restrictions or prohibition imposed. It will treat recreational drugs more like medicines, with the onus on the manufacturer to demonstrate their safety.
All the criteria [for statutory drug classification], including those which measure social harm, should be applied and considered at the individual level and not at the aggregate level to better reflect the intrinsic harm of each substance rather than the prevalence of their use.
A full scale review should be undertaken to determine the appropriate classification of all drugs currently scheduled in order to address existing inconsistencies.
The current classifications of particular drugs bear little relationship to the harm caused by them. There is no evidential basis, for example, to support LSD which has relatively minor intrinsic harm potential being categorised in Class A along with methamphetamine and heroin which have very serious intrinsic harm potential.
It should no longer be an offence to possess utensils for the purpose of using drugs.
The current prohibition on possession of utensils increases the potential for harm by encouraging more unsafe methods of drug use, e.g. needle sharing. And water pipes remove much of the harmful tar and particulates from cannabis smoke. The current law causes harm, rather than prevents it.
The current warrantless power to search places if there is reasonable cause to suspect an offence involving a Class C drug should be limited to dealing offences.
This would remove the ability of Police to raid properties, sometimes when the real reason is completely unrelated to drugs, on the basis that they “could smell cannabis smoke”. Another good proposal!
A mandatory cautioning scheme should be established for personal possession and use offences. … Police would be required to issue a caution notice when a personal possession and use offence was detected, with limited exceptions. … A caution notice would only be issued with the user’s consent and when the user acknowledged responsibility for the offence. Otherwise, the user would be prosecuted. … A user who came to police attention for a personal possession and use offence for the second time for a Class A drug, the third time for a Class B drug, or the fourth time for a Class C drug, would be prosecuted.
This would certainly be an improvement on the current law, in that it would avoid the criminalisation of many occasional recreational users of controlled drugs, and the cautions system involves provision of contact details of support services and treatment providers.
However, it does seem to depart from the principle of harm minimisation that underpins much of the rest of the Law Commission’s report. It is not evidence based policy to suggest that someone who smokes a joint on a lazy Sunday afternoon or has an ecstasy tablet in their purse in anticipation of Friday night’s dance party is causing any more harm to themselves or anyone else than someone who drinks a bottle of wine with their dinner occasionally.
In the case of simple possession or use of Class C controlled drugs (and ecstasy would almost certainly be reclassified as Class C, if classified at all, under the Law Commission’s classification proposal), a harm minimisation approach doesn’t seem to warrant the intervention of the criminal law.
Despite that last reservation, Government should give serious consideration to implementing the Law Commission’s report. Given Justice Minister Simon Power’s cursory dismissal of the Commission’s earlier discussion document on drug law reform, I’m not optimistic of any progress before November’s General Election though.