by Kevin Hague
For many years the Green Party and many others have been calling for the regulation of drugs to be driven by harm minimisation and health promotion rather than a criminal justice perspective. The evidence is ubiquitous and extremely strong that the “war on drugs” approach does not work to reduce use or harm, and itself causes massive harm and social and financial cost.
We have also said that all drugs – both those currently legal and illegal – should be regulated in a single legal framework.
The Psychoactive Substances Bill is a really major step forward in drug law. It essentially provides for the manufacture, import, distribution, and retail of mind-altering substances provided that they create no more than low risk of harm. The Bill uses a licensing system and provides for various regulatory tools to control retail locations, advertising, sponsorship, packaging and so on. It is clearly possible to subject other substances to the same test and regulate them in the same ways.
Unfortunately, though, some in the Government have clearly not understood their own Bill, or alternatively National has needed to provide comfort to factions with incompatible views, and the result has been several major flaws that leave the Bill not the great piece of legislation it should have been.
Animal Testing – as introduced the Bill would have seen a substantial programme of animal testing, with all the suffering and death that would involve, used to establish the relatively low risk of products. As a result of the campaign led by the Greens in Parliament, supported by others, and animal welfare organisations outside Parliament, LD50 tests were first ruled out, and finally a clause added to the Bill to the effect that animal testing would be unacceptable except where no other suitable test exists. That’s a big advance, but will be hard to monitor and enforce and will essentially end up with Courts having to decide whether alternative tests are good enough. Mojo moved an amendment to instead still require applicants to prove their product was low risk, but without using data from animal testing, essentially setting a higher barrier. Unfortunately this was rejected by National, Peter Dunne and Brendan Horan (and NZ First abstained).
Possession – possession offences are the usual means by which many New Zealanders are criminalised around drugs, and essentially offer no benefits at all. Use or addiction are not reduced, and it becomes harder, not easier to get people connected up with treatment services if they need them. We had consensus on the Select Committee that possession of an unapproved psychoactive substance should not be an offence, and then at the last moment the Government changed its mind. The Bill now contains an infringement offence (essentially like a parking ticket, with no criminal conviction). However the idea of infringement offences is that they provide an instant, minor penalty for small offences, and in the case of psychoactive substances to determine what they are will take literally months so there is no possibility of instant anything, apart from frustration because of confiscation of a substance that will usually turn out to be legal, and a very major hassle for Police.
Transition provisions – There is a delicate balance to be struck concerning the substances currently on sale. Some of them will not meet the ‘low risk’ threshold under the new regime, but we do not want these substances to seed the creation of an underground market as exists for drugs controlled by the Misuse of Drugs Act. The Select Committee’s solution was to provide for an extended period for products currently on sale to continue to be sold in certain retailers for up to 18 months provided that a licence to manufacture or import that substance was approved within that time (and allowing for the product to be withdrawn if it proved more than low risk). Unfortunately the Minister has caved to moral panic and that 18 months has been reduced to just 3. The result is very likely to be the underground market that the Select Committee was trying to avoid.
So a mixed bag. Still worth supporting, but it could have been great. Next we need to work to make it so.