Series on Legislative Reform of Drug Policies Nr. 8 August 2010

Drug Reform: Lessons from the Experience

By Sanji Gunasekara1

New Zealand’s existing drug are out of date, overly complex and poorly aligned with official drug policy. In 2007, the Government entrusted an independent agency, the New Zealand Law Commission, to comprehen- sively review the country’s drug law. The Commission's approach has been to make proposals for drug laws that support and enhance the country’s drug policy – an im- portant departure as, in many countries, and previously in New Zealand, drug laws have been developed and implemented with little consideration of their wider impact on social KEY POINTS policy.  The independent National Law Commis- The Law Commission has produced an issues sion has reviewed New Zealand's existing paper for discussion and will shortly present a drug laws against the official drug policy final report to the Government. This is likely and has formulated a series of recommen- to feature a new approach to the personal dations for the Government to consider. possession and use of drugs which places less  The Commission believes there is signifi- emphasis on conviction and punishment and cant scope for a more effective regulatory more emphasis on the delivery of effective approach for personal drug use within the treatment, while ensuring that New Zealand framework of the UN drug conventions. remains in fulfilment of its international obli- This will allow to direct drug users away gations. It is also likely to propose a new re- from the criminal justice system and into gulatory framework for non-convention education, assessment and treatment. drugs. New Zealand’s approach to the reform of its drug laws may provide important les-  The Commission's final report is likely to sons for other countries. serve as a blueprint for drug law reform. Many of the recommendations will be WHY THE REVIEW IS NECESSARY applicable to other countries attempting to steer a balance between enacting pro- In New Zealand, the recreational use of illegal gressive drug law reform while complying psychoactive substances is regulated by the with their international treaty obligations. Misuse of Drugs Act 1975.2 This Act is now 35 years old. Its main components were de-  Politicians should devise legislation on the veloped when the hippie counterculture was basis of evidence rather than populist at its height and the illegal drugs of choice sentiment. Civil society and the media can were , , opiates and psyche- help to ensure that the drug law reform delics like LSD. Since that time, a great debate remains grounded on the evidence amount of research has been undertaken into and does not become polarised. the effects of different drugs. We have a much

Legislative Reform of Drug Policies | 1 better understanding about the harms of drug proach of the last three decades, recreational use and ways to reduce those harms. While drug use is widespread in New Zealand. In a the use of cannabis remains high, new drugs 2008 survey, nearly one in two adults aged have appeared. In the 2000s, party pills like 16–64 years (49.4%) had used cannabis in (BZP) and more harmful their lifetime, representing 1,224,600 per- drugs like have joined sons.4 cannabis at the forefront of New Zealand’s drug scene. New Zealand’s drug landscape is Thirdly, the existing supply-control focussed very different from that which the Act con- approach consumes an inordinate amount of templated in 1975. resource via demands on enforcement, justice and corrections. For example, in 2005-06, Over the years, various amendments have 333,684 hours of police time were devoted to been made to the Act to respond to issues as cannabis drug enforcement at a cost to the they arose. For example, in 1988 an amend- taxpayer of $116.2 million,5 a figure repre- ment introduced the concept of a controlled senting approximately 8.8% of the total police drug analogue to address the emergence of budget.6 Drug-related offending accounts for new synthetic designer drugs developed by about 10% of New Zealand’s total prison subtle chemical changes to prohibited drugs population.7 to avoid the provisions of the Act. But this did not address the emergence of new syn- Fourthly, the adverse social consequences thetic drugs with distinct chemistry. from an overly punitive approach are clearly disproportionate to the harms caused by drug In 2005, an amendment provided for a new use, with large numbers of young New Zea- restricted substances regime to regulate ac- landers receiving criminal convictions for life cess to new psychoactive substances such as as a result of minor drug offences. BZP which were not controlled drug analo- gues and so were not covered by the Act. Fifthly, the absence of effective regulatory These ad hoc amendments have made the Act controls over new psychoactive substances difficult to understand and navigate. A first entering the market is a glaring anomaly principles review of the Act is well overdue. when compared with the prohibitionist In 2007 the then Labour Government invited approach to substances covered under the the New Zealand Law Commission, an inde- UN conventions and represents a serious pendent advisory body (see below), to review threat to public health. the Act. This invitation arose partly in re- sponse to the debate over the reclassification THE LAW COMMISSION AND THE REVIEW of BZP as a Class C controlled drug. PROCESS

There are several additional compelling rea- The Law Commission is an independent ad- sons for drug law reform. Firstly, New Zea- visory body established in 1986 to undertake land’s existing drug law is inconsistent with the systematic review, reform and develop- its official drug policy. The National Drug ment of the law of New Zealand. It makes Policy 2007-2012 is based on the principle of recommendations to the Parliament. Its goal harm minimisation and supports a balance of is to achieve laws that are just, principled, measures including supply control, demand accessible, and that reflect the heritage and reduction and problem limitation.3 Yet the aspirations of the peoples of New Zealand. Misuse of Drugs Act 1975 emphasises supply control while largely neglecting these two The Law Commission is comprised of six other important pillars. Greater legislative Commissioners in addition to a team of legal recognition of demand reduction and harm researchers. Its President, Sir Geoffrey Pal- reduction strategies is needed. mer, is a former Professor of Law, former Prime Minister of New Zealand and has sat as Secondly, the deterrent effect of the law has a Judge on the International Court of Justice. been very limited. Despite the punitive ap- He has been recognized for his expertise in

2 | Legislative Reform of Drug Policies international and constitutional law and to propose a contemporary legislative frame- holds honorary doctorates from three Uni- work for regulating drugs that supports and versities. enhances the effectiveness of drug policy. The framework should be consistent with New The terms of reference provided to the Law Zealand’s international obligations concern- Commission by the Government for this ing illegal and other drugs and reflect up-to- particular review included the following. date knowledge and understanding about drug use and its related harms. The Commission will review the Misuse of Drugs Act 1975 and make proposals for a As part of its work, the Law Commission new legislative regime consistent with New consulted widely with academics, community Zealand’s international obligations concern- leaders, treatment providers, legal and policy ing illegal and other drugs. The issues to be experts, public health professionals and other considered by the Commission will include: agencies. In February 2010, it released an 8 (a) whether the legislative regime should issues paper on the Misuse of Drugs Act. reflect the principle of harm minimisation This paper makes tentative proposals for how underpinning the National Drug Policy; New Zealand’s drug laws can be updated to put in place a modern and evidence-based (b) the most suitable model or models for statute with the ability to respond to the the control of drugs; inevitable changes that New Zealand’s drug (c) which substances the statutory regime landscape will continue to face. should cover; Following the release of its issues paper, the (d) how new psychoactive substances Law Commission called for public submis- should be treated; sions and undertook a process of further (e) whether drugs should continue to be consultations throughout the country. This subject to the current classification system robust consultation process has provided the or should be categorised by some alternative opportunity for the public of New Zealand to process or mechanism; have their say. The Law Commission is cur- rently in the process of considering public (f) if a classification system for categorising submissions on its issues paper on the Misuse drugs is retained, whether the current of Drugs and is expected to release its final placement of substances is appropriate; report to the Government later this year. (g) the appropriate offence and penalty structure; A similar review of New Zealand’s alcohol laws by the Law Commission attracted nearly (h) whether the existing statutory dealing 3000 submissions. The Law Commission presumption should continue to apply; clearly gave close attention to public consul- (i) whether the enforcement powers tations and submissions, revising some of its proposed by the Commission in its report original recommendations in its final report on Search and Surveillance Powers are to the Government. adequate to investigate drug offences; PROPOSED APPROACH TO CONVENTION (j) what legislative framework provides the DRUGS most suitable structure to reflect the linkages between drugs and other similar In its review, the Law Commission sets out by substances; outlining the distinction between drugs that (k) which agency or agencies should be are covered under the UN drug conventions responsible for the administration of the and those that are not. The Law Commission legislative regime. acknowledges that New Zealand is a party to the three long-standing UN drug conventions The Law Commission’s review has been com- and considers that New Zealand must con- prehensive and wide-ranging. Its objective is tinue to comply with its obligations under the

Legislative Reform of Drug Policies | 3 conventions. However, this does not preclude In New Zealand, as in many other jurisdic- changes to New Zealand’s approach to the tions, drug classification is vulnerable to control of convention drugs. media and political pressure. There is also debate about how to measure drug harm. The Law Commission outlines the consider- Ideally, this should take into account physical able debate surrounding the nature of these harms, dependence potential, prevalence and obligations. It broadly concludes that while social harms,9 as well as New Zealand’s uni- possession and use must continue to be que social and cultural landscape, but the restricted and unlawful, there is no require- difficulties in measuring the prevalence of ment to establish criminal offences for drug drug use make definitive estimates of harms use per se. Even within a global prohibitionist including social costs difficult. framework, the Law Commission points out that there is considerable scope to look at The Law Commission argues that reform of alternatives to prosecution, alternatives to the current approach to drug classification is conviction, the use of non-custodial sanc- essential as part of any efforts at reforming tions, and the use of alternative civil or ad- drug laws. The Law Commission proposes a ministrative sanctions. number of options for reforming the ap- proach to classification, including retaining The Law Commission has taken the view that the overall concept of a three-tiered system the state’s efforts should be concentrated on but with several modifications. Importantly, reducing harm rather than simply punishing if an ABC-type classification system is re- drug users, an eminently sensible position tained, the Law Commission emphasises that from a human rights, social justice and cost- it needs to be regularly reviewed. They also benefit perspective. suggest the criteria used to decide whether or not to prohibit a drug should be different Ultimately, legislative reforms should aim to from the criteria used to decide the class in direct dependent drug users in particular which a prohibited drug should fall. away from punishment and towards treat- ment and education. These are quite different decisions, yet cur- Classification rently the same criteria are taken into account in deciding whether or not a drug should be There are significant differences in the poten- prohibited as are taken into account in decid- tial for harms caused by different drugs. It is ing the maximum penalties for drug offences. important to recognise these differences The Law Commission also highlights the when formulating legislative and policy need to take into account the costs and bene- responses. Furthermore, drug classification fits of prohibition when deciding whether or per se matters little in terms of deterrence not to prohibit a drug. It argues that harm is when it comes to personal use. the most important consideration when it comes to classification decisions, categorised New Zealand uses a three-tiered ABC drug by the substance’s physical harms, depend- classification system. In 2005, an amendment ence potential and social harms. to the Misuse of Drugs Act established a new ‘restricted substances’ category to deal with The Law Commission stresses the importance new recreational psychoactive substances that of a statutory committee of experts to advise were not harmful enough to justify prohibi- the Government on the regulation and classi- tion. This was briefly used to regulate BZP. fication of drugs, to ensure that all decisions However, BZP was subsequently reclassified made are evidence based. To this end, they as a Class C controlled drug and the ‘restricted suggest that this body should be independent, substances’ schedule has since remained multidisciplinary and include consumer rep- empty. This is due primarily to a loophole resentation and experts in drug policy. They whereby new harmful psychoactive sub- also argue that the drug classification process stances automatically fall into one or other of should be subject to full parliamentary scru- the exclusions under the amendment. tiny rather than by the current ‘Order in

4 | Legislative Reform of Drug Policies “ We think that the criminal justice system has a position is consistent with moves to ensure that any punitive measures are proportionate key role to play in identifying individuals whose to drug-related harms. Incarcerating people drug use is causing harm and diverting them into for minor drug offences such as social supply is a disproportionate response, a wasteful use drug education, assessment and treatment. of resources and not the most efficient way to Simply punishing a drug user, without taking ensure that drug education and treatment needs are met. steps to address their drug use, is a wasted opportunity. ” Currently, the offence of possession for sup- ply includes a legal presumption that a defen- New Zealand Law Commission dant who possessed drugs above a certain quantity must have possessed that drug for the purposes of supply. This presumption is Council’, a truncated affirmative resolution controversial and in 2007, a majority of the procedure which restricts public participa- held it to be inconsistent with tion. It is important that decisions of this the Bill of Rights Act.10 In addressing this magnitude are made by primary legislation issue, the Law Commission favours repealing and this particular suggestion by the Law this presumption with an aggravated posses- Commission would represent a significant sion offence, with applicable quantities need- advance over the existing, less transparent, ing to be specified for each drug. process for drug classification.

Dealing Personal Use Offences

Some of the current offences for dealing in The Law Commission believes there is signifi- controlled drugs under the existing Act are cant scope within the framework provided by problematic, partly because of the broad the UN conventions to put in place a more range of activities they cover and partly be- effective regulatory approach for dealing with cause they blur the distinction between ‘social personal use offences. This approach would supply’ of drugs and commercial dealing. achieve the following: Underpinning the Law Commission’s review  enable law enforcement resources and ac- is its view that any response should take into tivity to focus on more harmful drug- account the relative harms of the drug-related related offending like commercial dealing activity. Large scale commercial drug dealing is considered to be the most harmful of all  provide a more proportionate response to drug-related activities and as such, the Law the harm that drug use causes Commission stresses that it is important that  address or mitigate some of the harms and offences and penalties adequately reflect the costs that inevitably result from drug pro- criminality of this behaviour. hibition While the Law Commission believes that  provide greater opportunities in the crimi- supply should always be a criminal offence, it nal justice system to divert drug users into puts forward the case for differentiating social drug education, assessment and treatment. supply from commercial supply during sen- tencing and sets out the following factors as Under current New Zealand law, the conse- indicative of social supply: i) the supply was quences of possession for personal use and in small quantities; ii) the offender was also related offences are officially dealt with using the drugs; iii) the supply was to friends through the criminal justice system. How- or acquaintances; iv) the offending was not ever, this approach is somewhat loosely up- motivated by profit. The Law Commission held by law enforcement officials (particu- suggests that there should be a presumption larly in relation to Class C drugs) who fre- against imprisonment for all cases of social quently resort to informal mechanisms such supply, regardless of the class of drugs. This as cautioning and confiscation. However, to

Legislative Reform of Drug Policies | 5 provide certainty and transparency for the those who are in greatest need of assessment police, the wider public and people who use and treatment receive it, while avoiding drugs, it is important that any new approach overburdening the treatment sector with to personal use is provided for in legislation. those users who are not dependent. Not all people caught with drugs are dependent drug With respect to the personal possession of users. In general, users of higher risk of harm small quantities of drugs, the Law Commis- drugs such as methamphetamine are more sion advances two main options, both of likely to be in need of assessment and treat- which are worth detailing here. ment than users of lower risk of harm drugs such as cannabis and ecstasy. The first option involves a formal cautioning scheme for all drugs. The police would be An infringement scheme for users of lower able to issue up to three caution notices risk of harm drugs (or an education session as rather than prosecute the user. A user receiv- an alternative) could operate alongside a ing a third caution notice would be required mandatory referral for assessment for users of to attend a brief intervention session and be higher risk of harm drugs. Failure to comply assessed with a view to receiving drug treat- could result in a sanction that could take the ment. A user on his or her first or second form of diversion. It is essential that the caution could be escalated to the level of a implementation of any such new scheme be third caution and be required to attend a brief preceded and accompanied by a high profile intervention session in appropriate cases. A public education campaign on the harms of user who had exhausted his or her caution drugs and the laws that apply. The scheme options would be prosecuted. should also be subject to ongoing monitoring and review. The second option involves the use of an in- fringement offence regime for less serious The Law Commission takes the view that any drugs. The police would issue an infringe- new regime that is applied to personal use by ment notice, which would require the user to adults should not apply to young people on pay a fixed monetary penalty or, possibly, the grounds that there is already significant attend a drug education session. Prosecution scope within the youth justice system to iden- and conviction for a personal use offence tify and deal with any drug treatment or other would not be possible. rehabilitative needs a young person may have. Youth are clearly more vulnerable to The Law Commission has also raised the pos- drug-related harms than adults and it is im- sibility of a combination of the above two portant that all youth apprehended with options, with the specific approach taken drugs receive an appropriate intervention. tailored according to the individual case. For this combination approach, a number of Ideally, this should couple a caution or warn- responses would be open to the police rang- ing with at least one mandatory educational ing from the issuing of a caution or infringe- and/or assessment session. This should aim ment notice, to referral to drug assessment to increase their knowledge and understand- with a view to treatment, to prosecution. ing of the harms associated with drug use, However, the Law Commission acknowl- and be flexible enough to provide or refer edges that such an approach would given those who need it for further assessment and police discretion and be open to inconsis- counselling. tency. In the event of prosecution for personal There are certainly merits to a combination possession offences, the Law Commission type approach that differentiates between identifies three options that represent a less lower risk of harm drugs such as cannabis severe approach to that applicable for more and higher risk of harm drugs such as serious drug offences, and are aimed and methamphetamine. The primary rationale for directing dependent users into assessment a differentiated response is to ensure that and treatment. The first option is to make

6 | Legislative Reform of Drug Policies greater use of an existing diversion scheme In tackling the misuse and diversion of medi- whereby it is extended to cover all drugs. The cations, legislative approaches alone are in- second option is for less severe penalties, with sufficient. In its issues paper, the Law Com- the current statutory presumption against mission draws attention to the importance of imprisonment for Class C personal use drug supplementary measures such as additional offences extending to all classes. The third professional training and guidance for pre- option is greater use of court-based diversion scribers and dispensers, more appropriate into assessment and treatment. With regard administrative systems and improved moni- to diversion, New Zealand can draw on the toring and review. experience from the Australian Illicit Drug Diversion Initiative which has been asso- When evaluating exemptions to prohibition, ciated with numerous benefits including large the Law Commission also addresses the issue reductions in criminal justice costs.11 of medicinal cannabis. Currently in New Zea- land, exemptions for prohibition deal with The Law Commission also questions whether cannabis-based medications like Sativex® it is necessary to retain a separate criminal although because this is a Class B1 drug, the offence of use (because the same behaviour is Minister of Health’s approval is required caught by the offence of possession), and before it can be supplied, prescribed or ad- whether the possession of utensils for the ministered. The Law Commission highlights purpose of using drugs should continue to be the more difficult issue of whether there a criminal offence. The current reality is that should be greater access to unprocessed can- police do not often charge a person with a nabis for therapeutic use. utensils offence as many people found in possession of a utensil will have some drugs Providing that the potential for diversion and in their possession. In that sense the misuse can be controlled, the Law Commis- possession of utensils does not reflect any sion states that it can see no reason why can- additional criminality on their part. nabis should not be able to be used for medi- cinal purposes in limited circumstances. It Exemptions to prohibition – the use of goes on to propose the establishment of a medicinal cannabis scheme for that purpose whereby those suf- In its report, the Law Commission acknowl- fering from clearly designated chronic or edges that a number of exemptions from the debilitating illnesses would be able to use overall prohibition framework are necessary cannabis under medical supervision to obtain to enable controlled drugs to be used for relief from their symptoms, particularly legitimate medical, scientific and industrial where conventional treatment options have purposes. However, the Law Commission proven ineffective. In this regard, the Law also recognizes that the diversion and misuse Commission disagrees with the approach of prescription drugs causes significant drug- taken in California whereby discretion is left related harms. to the treating physician. The Law Commis- sion believes that the Californian approach Currently, both the Medicines Act and the exposes doctors to pressure and encourages Misuse of Drugs Act have exemptions for the medicinal use of cannabis in situations controlled drugs that are medicines. These where other suitable alternatives are available. are often framed differently, making it un- clear, in some circumstances, what the precise The Law Commission believes that cultiva- powers of the exemptions are. The Law Com- tors of medicinal cannabis should be licensed mission recommends that controlled drug in the same way as other legitimate dealers in exemptions applying to medicines should be controlled drugs. This would minimise the in one Act (with cross-references) and subject risk that the cannabis would be diverted into to one consolidated set of conditions. Clarity illegal activity, and would ensure the cultiva- is of paramount importance when stipulating tion of a limited supply of cannabis in a con- these exemptions. trolled and standardised way. The commer- cial viability of a closely controlled licensed

Legislative Reform of Drug Policies | 7 model remains a significant question, given prohibition of a non-convention drug should that only small numbers of people are likely only be considered when legalisation with to be eligible to use cannabis medicinally. regulatory restrictions has proven ineffective in reducing the harm associated with that The Law Commission also favours the estab- particular drug’s use. lishment of a central register of authorised users of cannabis for medicinal purposes Such a regime would require manufacturers who, once registered, would be able to obtain and importers of a new substance to obtain prescriptions for cannabis from their medical an approval for it before it could be released practitioner or another authorised prescriber. onto the market. This effectively reverses However, it is likely that the maintenance of what happens now in practice, where a sub- such a central register would entail significant stance can be manufactured, imported and further regulatory costs. sold without restriction until it is proven to be harmful. PROPOSED APPROACH TO NON- The Law Commission believes there should CONVENTION DRUGS be some minimum requirements on all Despite the 2005 amendment and provision approved psychoactive substances. These for a new restricted substances regime, there may include, for example, restrictions on is a current lack of active regulation of new their sale or supply to people under 18, ad- psychoactive substances which come onto the vertising restrictions and a prohibition on market. This makes it possible for potentially where these substances may be sold. The unsafe substances to be marketed and sold regulating body could also impose additional without restriction. Indeed, since BZP was conditions on individual substances, depend- reclassified as a Class C Controlled Drug in ing on the particular harms they posed. If an 2008, a range of synthetic and herbal non- approval to manufacture or import a sub- BZP party pills have emerged. In most cases, stance were declined, the appropriate course the precise ingredients of these new pills are would be to bring it within the regime that poorly understood. The Law Commission applies to prohibited drugs. Similarly, if the argues that the existing approach to regulat- regulatory regime proved to be ineffective in ing new psychoactive substances needs a minimising the harm of a regulated drug, major overhaul and proposes that a new prohibition could then be considered. regime be implemented, designed specifically for non-convention psychoactive substances. As part of an improved approach to non- convention psychoactive drugs, tailored When considering different models of drug criteria would need to be devised and applied regulation for non-convention drugs, the Law when deciding whether a substance should be Commission concludes that, with some lim- regulated and an approval issued. The Law ited exceptions, regulation of drug use is gen- Commission identifies the following criteria erally only justified to the extent necessary to for this purpose: i) The nature of the harm prevent harm to others. The benefits arising caused by the substance and any benefits from that reduction in harm must also out- associated with its use; ii) Whether that harm weigh the costs arising from regulation itself. can be effectively managed by the imposition of regulatory controls; iii) The likely conse- The Law Commission proposes that a model quences of any proposed regulatory controls of legalisation with regulatory restrictions or prohibiting the substance (including cost should be the starting point for non-conven- effectiveness); iv) Any possible displacement tion psychoactive drugs. They go on to stipu- effects that might occur because of the way late that these restrictions should be the mini- other substances are regulated. mum necessary to prevent or reduce harm, reflect the nature of the risks that drug poses Criteria used in this determination process and not cause more harm than they prevent. must be transparent to ensure that all deci- The Law Commission takes the view that full sions are evidence-based. It is also important

8 | Legislative Reform of Drug Policies that any regulatory regime for new psychoac- pillars – supply control, demand reduction tive substances is closely and actively evalu- and problem limitation – with much greater ated. emphasis on treatment.

GREATER FOCUS ON TREATMENT, Concerns about the significant lack of re- sourcing for prevention and treatment in PREVENTION AND EDUCATION New Zealand are not new. Treatment and Achieving balance in drug policy public health professionals have been bring- ing similar concerns to the attention of A key part of the Law Commission’s review is governments for decades. Indeed, the 1973 devoted to providing a greater focus on treat- Blake-Palmer review,13 a foundation docu- ment, prevention and education. This is part ment in terms of drug policy, raised the same of attempts towards achieving a better balan- concerns. In its recommendations, it called ce between strategies of supply control, for the level of financial support for the work demand reduction and problem limitation. of approved organisations in the field of drug Demand reduction, in particular, does not misuse to be augmented. receive the level of support required in New Zealand. Current funding for prevention and Alcohol and drug addiction Act 1966 treatment services is clearly inadequate. Furthermore, there are specific problems in As part of its review of New Zealand’s drug some geographical areas, for some service laws, the Law Commission has looked at reform of the Alcohol and Drug Addiction types (e.g. residential programmes), and for 14 some population groups – especially youth. Act 1966. This is the legislation that allows Treatment services available to the court and drug addicts to be compulsorily detained to prison systems are also insufficient. undergo assessment, detoxification and treat- ment. Dating from 1966, it is even more The Law Commission draws attention to the obsolete than the Misuse of Drugs Act. There fact that the international drug conventions are difficulties in reconciling its broad powers impose a responsibility on national govern- of detention with the rights and protections ments to make treatment available for drug in the New Zealand Bill of Rights Act 1990. dependent users and highlights the need for a much greater emphasis on drug treatment in The Law Commission has indicated its belief New Zealand. They also cite evidence for the that there is a place for a limited compulsory cost-effectiveness of specialist drug and alco- civil detention and treatment regime contain- hol treatment. For example, for every $1 ing appropriate safeguards. Their rationale is spent on addiction treatment, there is a $4 to that people who are drug dependent are often $7 reduction in the cost associated with drug- incapable of making rational decisions over related crimes and for some non-residential their substance use and personal welfare. programmes, total savings can exceed costs Short-term compulsory intervention may get 12 by a ratio of 12:1. them to a position where they are able to While the Law Commission considers the more readily help themselves. If there was no need for further statutory mechanisms to compulsory regime, their access to treatment support and encourage government efforts in might be significantly eroded. However, they the treatment area, it suggests that developing emphasise that any such regime should only a blueprint for drug and alcohol and other be a last resort and come into effect when all addiction service delivery for the next five the following conditions are met: years provides a more practical way to in-  the person has a dependence on alcohol or crease the emphasis on treatment. other drugs; Nevertheless, the Law Commission recom-  detention and treatment is necessary to mends that any new legislative framework protect the person from significant harm should better recognise and support all three to himself or herself;

Legislative Reform of Drug Policies | 9  the person is likely to benefit from treat- and the final document is likely to represent a ment for his or her alcohol or drug de- blueprint for change over the coming years. pendence but has refused treatment; and CONCLUSION  no other appropriate and less restrictive means are reasonably available for dealing with the person. Over a hundred years ago, New Zealand be- came the first country in the world to give women the right to vote. In the mid 1980s, it NEXT STEPS AND BARRIERS TO CHANGE enacted bold anti-nuclear legislation, de- The Law Commission is currently in the pro- criminalised homosexuality and established cess of considering public submissions on its needle exchange and opioid substitution issues paper and is expected to release its final programmes for intravenous drug users. Yet report to the Government towards the end of sadly, its drug laws have remained frozen in a 2010. However, there is no guarantee that any 1970s paradigm. It is time for these to be of its recommendations will be adopted. As in dragged into the 21st century to better sup- many other countries, drug policy in New port and enhance drug policy. Zealand is a socially divisive issue and the As a small and geographically isolated coun- issue of drug law reform is an area where po- try on the periphery of the world, New Zea- liticians are often more influenced by popu- land’s review of its drug laws represents an list sentiment than by the best evidence. opportunity for it to once again join the ranks In this regard, the Government’s initial re- of progressive countries in terms of innova- sponse to the issues paper has not been en- tive, fair and effective social legislation. couraging, with the Minister of Justice assur- ing journalists “there’s not a single, solitary Drug law reform is a socially divisive issue chance” he would be relaxing drug laws. but the approach that New Zealand is taking Unfortunately, debate on drug policy is all may offer some useful lessons for other coun- too often polarised between two extremes – tries. Tasking an independent and well re- proponents of complete legalization at one spected entity to research the issues and for- end versus those advocating a continued zero mulate a series of recommendations for the tolerance stance on the other. The media con- Government to consider may partially depo- tributes to this oversimplification, preferring liticise the issue. the sensationalism more likely to boost their While it is still premature to ascertain the ratings rather than the reasoned middle extent to which actual drug law change will ground which is often perceived as dull. occur, the Law Commission’s comprehensive If the Law Commission’s issues paper is any- issues paper and final report is likely to serve thing to go by, then its final report to the as a blueprint for drug law reform in New Government is likely to be comprehensive, Zealand for the next few years. Many of its carefully considered and firmly supported by recommendations will also be applicable to the evidence. Its tentative proposals can other countries attempting to steer a balance hardly be described as ‘radical’. Indeed, the between enacting progressive drug law re- Law Commission has acknowledged that form while complying with their internatio- many of its recommendations regarding an nal treaty obligations. alternative approach to personal possession Even within the framework provided by the offences are already in existence in other existing UN conventions, the Law Commis- jurisdictions, including several states in Aus- sion concludes that there is significant scope tralia. to put in place a more effective regulatory Regardless of how the Government responds approach for personal drug use. A key aspect to the Law Commission’s final report, the of this is to provide greater opportunity to agency’s work has been enormously useful direct people who use drugs away from the

10 | Legislative Reform of Drug Policies criminal justice system and into education, 1975 in relation to Bill of Rights). The Court tackled assessment and treatment. a series of key methodological issues in the applica- tion of the Bill of Rights, many of which have been Despite the excellent work done by the Law the subject of extensive academic commentary over the last few years. Although the result in this case was Commission, there is no guarantee that any unanimous, all five justices issued separate opinions of its final recommendations will be adopted and there were significant differences of approach on by the Government. If New Zealand is to a number of issues. achieve progressive drug law reform, it will 11. Hughes C. Australia’s alternative to drug law require its politicians to be guided by the best reform: diversion. Sydney, NSW, 2010 available evidence, not by populist sentiment. In this regard, civil society, NGOs and the 12. National Committee for Addiction Treatment (NCAT). Investing in Addiction Treatment - a media have an integral role to play in ensur- Resource for Funders, Planners, Purchasers and ing that debate relating to drug law reform Policy Makers. , 2008. remains balanced and grounded firmly on the 13. Blake-Palmer (Chairman). Drug Dependency and evidence. Drug Abuse in New Zealand (second report). Board of Health Report Series: No 18. 1973 NOTES 14. The text of the legislation can be obtained from: www.legislation.govt.nz/act/public/1966/0097/latest/ 1. Senior Policy Analyst, New Zealand Drug whole.html#dlm380353 Foundation 2. Text available from: REFERENCES www.legislation.govt.nz/act/public/1975/0116/latest/ DLM436101.html Blake-Palmer (Chairman). Drug Dependency and Drug Abuse in New Zealand (second report). Board 3. Ministerial Committee on Drug Policy. 2007. of Health Report Series: No 18. 1973 National Drug Policy 2007-2012. : Ministry of Health. [available from: Business and Economic Research Limited (BERL). www.ndp.govt.nz] New Zealand Drug Harm Index (Report prepared for the , Wellington, 2008). 4. Ministry of Health. 2010. Drug Use in New Zealand: Key Results of the 2007/08 New Zealand Controlling and Regulating drugs (Law Commission Alcohol and Drug Use Survey. Wellington, New issues paper;16). February 2010, Wellington, New Zealand. [available from: www.moh.govt.nz] Zealand. [available from www.lawcom.govt.nz] Hughes C. Australia’s alternative to drug law reform: 5. Business and Economic Research Limited (BERL). diversion. Sydney, NSW, 2010 New Zealand Drug Harm Index (Report prepared for the New Zealand Police, Wellington, 2008). Ministerial Committee on Drug Policy. 2007. National Drug Policy 2007-2012. Wellington: 6. New Zealand Police Annual Report for the year Ministry of Health. [available from ended 30 June 2006 [available from: www.ndp.govt.nz] https://admin.police.govt.nz/resources/2006/annual- report/police-annual-report-2006.html] Ministry of Health. 2010. Drug Use in New Zealand: Key Results of the 2007/08 New Zealand Alcohol and 7. Provoost D. The Cumulative Effect: Uncovering Drug Use Survey. Wellington, New Zealand. the contributing factors behind the increasing prison [available at www.moh.govt.nz] population. Presentation to New Zealand Police Research Symposium. Justice Strategic Policy Unit, National Committee for Addiction Treatment July 2008. (NCAT). Investing in Addiction Treatment - a Resource for Funders, Planners, Purchasers and 8. Controlling and Regulating drugs (Law Policy Makers. Christchurch, 2008. Commission issues paper;16). February 2010, Wellington, New Zealand. [available from Provoost D. The Cumulative Effect: Uncovering the www.lawcom.govt.nz] contributing factors behind the increasing prison population. Presentation to New Zealand Police 9. Sellman, J.D. & Adamson, S.J. (2007), Proposed Research Symposium. Justice Strategic Policy Unit, scale for rationally assessing the risk to public health July 2008. from using a drug. National Addictions Centre, Otago University, Christchurch, New Zealand. Sellman, J.D. & Adamson, S.J. (2007), Proposed scale for rationally assessing the risk to public health from 10. R v Hansen [2007] 3 NZLR 1 (burden of proof using a drug. National Addictions Centre, Otago and evidential burden under Misuse of Drugs Act University, Christchurch, New Zealand.

Legislative Reform of Drug Policies | 11 Series on Legislative Reform of Drug Policies

Pardon for Mules in Ecuador: A Sound Proposal Sentencing for Drug Offences in England and Pien Metaal Wales: Law Reform without Legislative Reform Nr. 1, February 2009 Genevieve Harris Nr. 5, June 2010 Drug Policy and the Courts: A Brazilian experience Argentina: Reform on the way ? José Henrique Rodrigues Torres Graciela Touzé Nr. 2, August 2009 Nr. 6, July 2010 Mexico: The Law Against Small-Scale Drug A Matter of Substance: Fighting Drug Trafficking Dealing - A Doubtful Venture With a Substance–Oriented Approach Jorge Hernández Tinajero & Carlos Zamudio Angles Ernestien Jensema Nr. 3, October 2009 Nr. 7, July 2010 Prohibition, a Backwards Step: The Personal Dose Drug Law Reform: Lessons from the New Zealand in Colombia Experience Diana Esther Guzmán & Rodrigo Uprimny Yepes Sanji Gunasekara Nr. 4, January 2010 Nr. 8, August 2010

Drug Law Reform Project

The project aims to promote more humane, balanced, and ef- fective drug laws. Decades of repressive drug policies have not reduced the scale of drug markets and have led instead to hu- man rights violations, a crisis in the judicial and penitentiary systems, the consolidation of organized crime, and the mar- ginalization of vulnerable drug users, drug couriers and grow- ers of illicit crops. It is time for an honest discussion on effec- tive drug policy that considers changes in both legislation and Transnational Institute (TNI) implementation. De Wittenstraat 25 1052 AK Amsterdam This project aims to stimulate the debate around legislative The Netherlands reforms by highlighting good practices and lessons learned in Tel: -31-20-6626608 areas such as decriminalization, proportionality of sentences, specific harm reduction measures, alternatives to incarcera- Fax: -31-20-6757176 tion, and scheduling criteria for different substances. It also E-mail: [email protected] www.tni.org/drugs aims to encourage a constructive dialogue amongst policy www.ungassondrugs.org makers, multi-lateral agencies and civil society in order to shape policies that are grounded in the principles of human rights, public health and harm reduction.

The International Drug Policy Consortium (IDPC) is a global International Drug Policy network of NGOs and professionals that specialise in drug Consortium (IDPC) policy issues. The Transnational Institute (TNI) has gained a c/o Release reputation as one of the leading drug policy research institutes 124-128 City Road and is widely recognised as a critical watchdog on UN drug London, EC1V 2NJ control institutions and policies. United Kingdom

Visit the website at www.druglawreform.info E-mail: [email protected] Twitter: http://twitter.com/DrugLawReform www.idpc.net

12 | Legislative Reform of Drug Policies